Employment Tribunals, faced with two hostile adversaries, are required calmly to reflect on the evidence before them and to determine both the facts of a claim and the appropriate legal interpretation to place on those facts. Typically, the available documentary evidence is incomplete, records are at times inaccurate (sometimes inadvertently, sometimes by design) and not all witnesses will be available or willing to give evidence. As a result, those on the Employment Tribunal panel, faced with contradictory evidence from the parties, must weigh up such evidence as they have, and try to determine who they believe. Parties need to appreciate that factors which undermine their credibility can have a fatal effect on a claim, regardless of whether they are the claimant or respondent.
Redundancy can be a fair reason for dismissing employees. However, it is often used as a cloak to remove staff who are perceived as unsatisfactory for some other reason, and at times, while the need to make redundancies may be entirely genuine, the selection criteria or other elements of the procedure, may be specially designed to eliminate staff based on a particular protected characteristic. Documentary evidence – either its presence or absence – can often be the clue to whether the process has been fair.
As the furlough scheme draws to a close this September, unfortunately it is anticipated that many employees will be made redundant, and the issue of fairness in selection criteria will be key to determining the legality of those dismissals. Ethnic minorities have particular reason to be nervous. Recently, the Department of Work and Pensions reported that unemployment amongst young black people is rising to a “shocking” 41.6% in the last quarter of 2020, compared to an already high 24.5% a year earlier. In the same period, unemployment in young white people increased from 10.1% to 12.4%.
Where the documents are at odds with what a party says, this may fundamentally undermine a party’s credibility. In the case of Beck v Canadian Imperial Bank of Commerce, the CIBC wished to reorganise its business. They dismissed their Head of Marketing, 42-year-old Mr Beck, on the basis of his alleged redundancy. However, the documents in this case told a different story and suggested his role was not in fact redundant. At the time CIBC were “consulting” Mr Beck about his redundancy, they were actively recruiting for new staff to do the same job. CIBC provided their recruitment agents with a role profile of the candidates they were looking for and it included the phrase “younger, entrepreneurial profile”. The Tribunal found that the core competences of the allegedly redundant Mr Beck were replicated in the new job description for the proposed new recruits in relation to the so-called new role. The Tribunal did not accept that the term “younger” merely meant less experienced, as CIBC alleged. The Tribunal did not accept that there was a genuine redundancy, and observed that “the Respondent’s insistence, despite the documentation, that there was a redundancy situation has not assisted their credibility in these proceedings.” In arriving at this conclusion, the Tribunal noted that the procedure was “hopelessly unfair”: the was no evidence of a genuine application of the selection criteria, no genuine consultation with employees, no effort to redeploy Mr Beck and the appeal was a sham. Employers making staff redundant, need to ensure that the documents match the actions they say they are taking. CIBC might have had a genuine reason to remove Mr Beck, because they needed an individual with different skills, or for capability or other reasons. However, in the absence of documentation that aligned with their explanation that he was redundant, they undermined their credibility. In addition, while the evidence of age discrimination was very limited, and hung on the use of the word “younger” in the role profile, once CIBC’s credibility was undermined, it was possible for Mr Beck to persuade the Tribunal that he had been discriminated against on the grounds of his age. Thus, opening the door to compensation which was not subject to the unfair dismissal cap.
DSAR – Data Subject Access Request
This brings me to the curious report of a recent data protection case involving First Choice Selection Services Limited (“FC”). Employees bringing claims against their employer often do not have the information that might be critical to the success of their claim. As a result, even before proceedings have been issued in an employment tribunal, it has become an increasingly frequent step for employees and their representatives to serve a Data Subject Access Request (“DSAR”) on their employer requiring them to provide copies of personal data they believe are likely to exist. Receiving such data can transform cases from a dud to one with real legs. Faced with such a request, employers have 28 days in which to provide data requested, unless they can establish it falls within one of the exemptions permitted under the data protection legislation.
FC were in a dispute with its employee (A) and employment tribunal proceedings had been commenced. A made a DSAR to FC, requesting a range of data about themselves. Most employers, faced with a request, would respond and provide the data sought (albeit that it is not unusual for some employers to withhold documents that are disclosable). However, unlike many employers, FC, faced with this request, took a highly unusual approach. The manager who received the request responded to A that same day by saying “I have no intention of releasing information to you….”. As a result, A complained to the Information Commissioner’s Office (“ICO”) that FC was breaching its data protection obligations in withholding the requested personal data. A course of correspondence then ensued between the ICO and FC. During this period, FC alleged that the Tribunal had instructed the parties that information could not be disclosed until a later date. When the ICO sought evidence of this instruction, not only could FC not provide it, but A was able to provide the ICO with a copy of a letter from the Employment Tribunal explaining that not only had the Tribunal not placed any embargo on documents being provided to A, but also that it had no jurisdiction to deal with matters related to data protection.
Following its investigation, the ICO had to consider whether FC had breached its data protection obligations to A. Where it finds it has, it then determines the appropriate penalty. It can issue an enforcement notice to an employer, instructing the employer to take action or it can move directly to issuing a financial penalty. The ICO found that FC had breached its obligations to A in relation to the DSAR and found that FC had “… wilfully sought to mislead the Commissioner …”. As a result, the ICO has issued an enforcement notice against FC. If it fails to comply with the enforcement notice, the financial penalty could be extremely severe. The ICO could order a financial penalty of as much as £17,500,000 or 4% of worldwide turnover, whichever is the higher.
The fact of their failure to comply with the request, and, the fact that the ICO has made a finding that they deliberately sought to mislead the ICO, has the potential seriously to undermine their credibility in relation to the claim pursued by A in an Employment Tribunal. While the refusal to comply with the DSAR may not be relevant directly to A’s case, the fact that the ICO has made such a damaging finding may (if admissible) adversely affect a Tribunal’s perception of FC. If the Tribunal needs to weigh up who it believes, a party who has wilfully misled a public body may not be regarded as a reliable witness.
DSARs are a powerful tool in a claimant employment lawyer’s armoury, and employers who entirely ignore them, or fail genuinely to comply with those requests, may find that they can have a particular sting in their tail, as the absence of documents, or the refusal to provide documents at all, provides an opportunity for the claimant’s representative to question the employer’s credibility.
And finally, on the subject of data protection, look out for changes ahead. The Department for Digital, Culture, Media and Sport has recently announced its plans to make changes to data protection legislation in the UK following Brexit in order to simplify the rules. Whether this will assist employers or employees remains to be seen.