Disclosing censored reports in an employment tribunal #hr #cipd #cmi

CIPD: “A prominent discrimination case reinforces the need for robust grievance investigation practices.  The much publicised employment tribunal case involving Carol Howard, a black female police officer working in the force’s diplomatic protection group, continues to make headlines. The firearm’s officer has now accused her employer of conducting a smear campaign after her tribunal claim against the force was successful. The latest accusations emerged during a tribunal costs hearing.

Investigation

The Metropolitan Police was found to have directly discriminated against Howard, the specific allegations in the case focusing on the employer’s course of conduct during which it was said that Howard was “singled out and targeted for almost a year by one boss”. When she submitted a formal complaint over the conduct, and an investigation report was produced, the investigating officer was allegedly asked to “delete all references to discrimination and harassment related to sex and/or race” because it could affect the tribunal claim. Documents disclosed during the tribunal process showed there had been changes made to the report.  As a result of these deletions, the impression conveyed by the final investigation report was that Howard had not been subjected to sex or race discrimination. However, the original draft, disclosed later in the tribunal process, indicated that the original conclusion reached was that Howard had suffered discrimination.

This case raises a number of challenging issues for employers, one of which relates to the retention of documents. It emphasises the requirement for employers to disclose all evidence in legal proceedings, including earlier draft versions of reports or letters.

Documents

There are no simple, clear-cut legal rules on retaining or deleting previous drafts of a document, created as part of an internal disciplinary or grievance process.  Normally, it would be acceptable to delete drafts that have been replaced by a final version.  However, in some cases, it may not be appropriate to do so.  Where legal action has been instigated and documents form part of the relevant evidence in a case, they must not be destroyed.

Disclosure

This is a complex area, governed by detailed rules on preservation and disclosure of evidence in legal proceedings and by other related laws such as the Data Protection Act 1998.  Matters are often complicated by associated legal issues, such as whether the documents can be said to be “off the record” because they were created as part of settlement discussions.  Documents prepared in order to take legal advice, for example, letters asking for a legal opinion on an issue, or briefing notes, or items which were created because it was known that a legal claim was likely to be brought, may also be deemed to be confidential, meaning that they do not have to be disclosed in a tribunal.

Employers in any doubt as to what they should and should not retain should seek detailed, specialist legal advice before creating documents that could subsequently cause concern.

The Howard case will no doubt have broader political repercussions and while it does not break new ground legally, it does serve as a powerful reminder to employers of the need to ensure robust investigation practices.  Having a fair and transparent procedure for handling complaints is an essential part of ensuring equality issues are taken seriously.

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