Amid speculation over today’s police intervention on Sue Gray’s inquiry into lockdown parties at Downing Street, attention has turned to the need to delay the report’s publication while HR policies are upheld, an employment lawyer has suggested.
HR director and employment lawyer at Spencer West, Amanda Lennon, said the senior civil servant may not be able to publish her report in any detail if she intended to identify the staff involved. Internal procedures would have to be completed first.
She told the PA news agency: “Fair investigations, and as appropriate follow up disciplinary action, in line with the relevant civil service HR policy, will have to have been carried out before it’s fair for conclusions to be reached in each case, from an employment law and HR perspective.
“If an employee is dissatisfied with the outcome of the investigation and/or any ensuing disciplinary process they have the right to appeal. This must be considered and concluded before the report is published unless the matter is couched in such a way that no particulars that could identify the individual are given.
“Otherwise the employee could claim that the process is procedurally and substantively unfair and a breach of their right to privacy.”
Unions and civil service HR leaders would be focused on the “need to follow a fair and thorough process with each individual, including concluding any appeal process against the decision”, she said, warning: “This could take weeks if not months.”
Lennon added that the only way she could see the report being published before concluding the HR process was to remove mention of any particular cases/individuals, and include some vague wording along the lines of “the civil servants involved are currently subject to an ongoing investigation, and disciplinary action may be taken where appropriate”.
She said those individuals’ reputations and employment positions could be seriously undermined, especially if their investigations had not been concluded and their privacy would be breached with their names becoming a matter of public record.
Lennon added that “the report should be delayed until the HR processes are all complete if names are to be included”.
A spokesman for the senior civil servants’ FDA union, said: “It would be the FDA’s expectation that, as is normal practice when the results of investigations are made public, no officials below the level of the senior civil service would be individually identified.
“Additionally, we would expect that anyone who is named would be given prior notice of what the report says about them.
“As those involved may also face further action by the police, it is important not to in any way prejudice the ongoing investigation by the Metropolitan Police.”
Acas states that employers ‘need not await the outcome of the criminal prosecution before taking fair and reasonable action’ – Raoul Parekh, GQ|Littler
The Metropolitan Police has stated it has asked senior civil servant Sue Gray to make “minimal reference” to events investigated by the force in her report. The force said it had not asked for “any limitations on other events in the report, or for the report to be delayed”.
Raoul Parekh, partner at GQ|Littler, pointed to the lessons of the inquiry for HR elsewhere. He said: “Sue Gray’s report into workplace misconduct has much higher stakes than most disciplinary investigations, but there are some parallels for employers.
“In particular, police investigations often overlap with employers’ investigations. This can leave employers with a difficult choice, as criminal processes can take years to complete, but an employer who suspects their employee of criminal conduct in the workplace will not want to let the issue lie.
“Luckily, the Acas Guide to Discipline and Grievances at Work provides some help for employers, as it states that employers ‘need not await the outcome of the criminal prosecution before taking fair and reasonable action’. The guide also says that employers can still take action where criminal charges lead to employees refusing to co-operate with investigations.”
Overlapping with police
Parekh continued: “None of this exactly applies to Sue Gray’s report, since most employers don’t face daily calls from politicians and the media to publish their findings in full. But employers who find themselves overlapping with police matters shouldn’t be persuaded to simply step back: they can still take action where required.”
Jenny Marley, an associate in the employment team at Ashfords, agreed that it was inevitable the report would be delayed in the circumstances. She said: “There are complexities around disclosing personal data which has to be dealt with in compliance with the UK General Data Protection Regulation and the Data Protection Act 2018, as well as any internal HR policies that apply. The potential for criminal charges adds another level of complexity as employees have additional protections in such circumstances.
“The fact the Metropolitan Police are carrying out an investigation into the same issue, is also having an impact. It is common in situations such as safeguarding or where there may be some other criminality, for the police to ask employers to suspend all other activities and enquiries into the issues so that there is no effect on their investigation.
“Although we understand the Met has not asked for the report to be held back, it is understood that they have requested for the parts of the reports which may prejudice their inquiries to be stripped out – this has inevitably resulted in delays as Sue Gray will want to ensure that her report is not diluted.”