Those (alleged) parties, that report – what lessons can employers and HR learn so far?

Whilst UK politics pauses waiting for the Sue Gray report, reportedly delayed by factors including police overlap and GDPR concerns, what lessons can we learn related to employment law, where disciplinary investigations are an everyday occurrence?  Quite a few actually…

Don’t jump to conclusions

When you hear that something which seems so obviously wrong has taken place (suitcases of wine springs to mind), don’t immediately decide guilt.  Basic principles of natural justice apply – innocent until proven guilty.  In the employment law world this means that there is a reasonable belief of guilt following a reasonable investigation.  A dismissal or disciplinary outcome will only stand up to legal challenge if a fair process has been carried out before the sanction is given.

You need a three step process, investigation, disciplinary stage and right of appeal.  Ideally, each stage should be carried out by different managers, increasing in seniority each time.  And no one should come to it with a preconceived view, an open mind is vital.

Pick your team carefully

As we know, civil servant Simon Case was due to lead the enquiry but had to step down, accused of ‘marking his own homework’ when it transpired that an event was held in his own office last December.

Your disciplinary team (investigating manager, disciplinary manager and appeal manager), should ideally come to the matter without prior involvement, so their outcomes can be demonstrably impartial and fair.  

What if the police get involved?

One of the reasons for the delay in the publication of the Sue Gray report is that the police are investigating in parallel and have asked the report to make ‘minimal reference’ to the matters they are investigating.

Occasionally work disciplinaries and police matters can overlap.  An assault at work can, for example, become a police matter, or criminal behaviour outside of work could impact on the employer’s reputation, leading them to take disciplinary action. 

This can cause headaches for the employer’s investigation process.  The employee may refuse to discuss the matter with the employer, in case they implicate themselves in a criminal offence.  The police might ask an employer to hold fire on questioning those involved whilst the investigation is live, and there is case law suggesting that it may be appropriate to adjourn a disciplinary investigation while the police investigate and prosecute the employee for the same matter.  However that could  take years. 

Ultimately anything involving overlap with the police is extremely sensitive and must be decided on a case by case basis, with good employment law advice.  The test applicable to whether the employer has adequately investigated the allegations before deciding to dismiss is the same whether the police are involved or not. The employer must have a reasonable belief in the employee’s guilt, based on a reasonable investigation.

Data Protection?

In a disciplinary context, an investigation report must be stored securely and access restricted to those individuals who need to see it. However, commitments have been made that the Sue Gray report will be published in full.  This report will presumably comment on the actions of civil servants who are not normally in the public domain and may have implications for future disciplinary action. 

Another cited reason for delay has therefore been that Government lawyers and HR teams have been involved in determining the GDPR implications of all of this – what can and can’t safely go into the public domain.  

From a general perspective remember that employers have serious GDPR responsibilities.  Employers should have sound GDPR policies in place and should ensure that those who are party to disciplinary matters act in accordance with those policies, using data appropriately and as needed, and maintaining confidentiality as required. 

There might also be times when the identities of witnesses should be anonymised for their own safety and protection.  That can be a hard balance when someone’s job hangs in the balance and they will want to know who has made the accusations.  Employers have to tread carefully in these situations, balancing the data rights and freedoms of those involved against other relevant factors, including personal safety in some cases. 

In less extreme situations, remember employees have the right to access to data about them (a subject access request), so they might ask to see a report they believe they have been named in. Remember, they only have access to data about them, not others, so you may need to redact information relating to others.

More generally, any investigation report should be disclosed to key decision-makers only and, where appropriate, the employee against whom allegations have been made.  It should not be circulated more widely.

Poor Sue, she’s not got an easy task!!