Confidential Emails can cost at Employment Tribunals
The leaking of confidential internal memos caused headaches for leaders of both the public and private sector in recent weeks.
The public sector saw the unauthorised advanced disclosure of a memo from the Home Secretary to the Chancellor saying police officers would not receive the pay award recommended by an independent body during the pay arbitration process.
In the private sector, the Managing Director of the Bristol Cadbury’s factory was accused of ‘gloating’ after his memo celebrating the company’s good sales performance was leaked.
The reason the memo sparked such controversy was its publication came at the same time as Cadbury’s decision to close its Keynsham factory near Bristol with the loss of 500 jobs. Another 200 jobs are at risk at its Bourneville plant in Birmingham.
Employers during an Employment Tribunal claim can suffer the same problems. Often a good chance of winning a claim is damaged just as the hearing approaches with the emergence of a document that casts a bad light on the company. The document may include derogatory remarks or record decisions taken at times or by people that are inconsistent with other public pieces of communication. The discovery of a document like this may well mean a case is settled at a premium.
Many employers are not aware of their duty to “disclose” – to provide copies of all documents relevant to a claim. This means the good and bad (and even the very ugly). This overriding duty on the parties in any claim remains right up until judgment is given.
The message to employers is simple: take care what you commit to writing.
- Writing includes emails, and these are frequently the undoing for both employers and employees alike.
- Resist the urge to send emails passing on personal comments on employees, even if tensions are running high and the comments seem justified at the time.
- Ensure all internal communications are consistent with what is said to employees.
- Remember documents may have to be disclosed during a claim
If documents contain inconsistencies or are derogatory they can be fatal in establishing a negative impression of an employer in front of an Employment Tribunal even before the case gets off the ground.
The Cadbury’s case highlights another new issue affecting employers. An Employment Appeal Tribunal recent decision means employers embarking on a redundancy process involving 20 or more must consult with employee representatives over the reasons why they are making redundancies. This extension of the consultation duty means employers must provide more up front information about their reasons for making redundancies.
For Cadburys, pinning their sail to the company’s “under performing” mast meant the leaked memo did nothing to improve employee relations (and, potentially, the fairness of the subsequent redundancies).
A predicted downturn in the economy means more employers are likely to be in a redundancy situation so the lesson is this - make sure your business reasons are clear and are backed up by supporting (and not contradictory) documentation.
For more information contact Susie Halliday
Published 01/01/2008. The author of this article is Susie Halliday
