Good employers treat their employees well and fairly. We all know that.
And, to protect themselves, good employers also make sure they follow the right processes and procedures when having to manage attendance or performance, or to discipline or dismiss members of their workforce.
But good employers can also fall foul of an increasing trend we are seeing, especially when employees think that they might take their employer to tribunal. The dreaded subject access request (SAR) under the Data Protection Act.
For those who have followed the correct procedures, this should never present a problem. However, careless use of email communications, because the writer thinks that they are private, can come back to haunt the employer in some circumstances.
Over the years, we have received email communication from a number of clients proposing a course of action or outcome with named employees. These were not prompted by us, but should they appear in court documents, they could be very damning. You might think it, but avoid the temptation to put your personal thoughts about people or what you want to happen to them in writing, especially when an individual is named.
Common emails that make us wince when we receive them are often along these lines: “I want to make Joe Bloggs redundant, how do I go about it?” or “Joe Bloggs is useless, how do we get rid?”
A subsequent redundancy process might then go ahead, you do it correctly and include others in the pool, and this individual is then made redundant. The employee then claims it is unfair, puts in a tribunal claim and also makes a subject access request. For a few years, a SAR was normally a precursor to a claim, as the employee (or their solicitor) embarked on a fishing expedition to look for something bad to confirm their suspicions. This has now evolved to other claimants who make their claim and then put their ‘request’ in to get some evidence, when they have very little and/or to put pressure on the employer to settle.
Depending on how that request is made, the original incriminatory email could be part of the disclosure that you are bound by law to reveal. It would then be very difficult, if not impossible, to argue that the redundancy selection process was a fair one.
So, the lesson is that, when dealing with employee issues, anything that could be seen as prejudicial, even if that is not really what you were actually intending, should not be committed to writing. And indeed, if you are thinking of making redundancies, the people chosen should never be a foregone conclusion, they must always be subject to a fair, equitable process, where the most suitable candidate or candidates are chosen for redundancy, not just the outcome you are looking for.
In circumstances where you have decided that a particular individual has come to the end of the road, redundancy is rarely the right solution. Settlement agreements, where issues can be openly discussed and dealt with, are much more effective and secure. And, a properly worded settlement can get around a subject access request “fishing trip” by specifically excluding it from any action that the employee can subsequently take.
The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice.
