Suppose a departing employee was the subject of serious allegations which you never had the chance properly to investigate or determine. Should you mention these (unproven) allegations to a future employer? Difficult questions arise, in both ethical and legal terms. One aspect of the legal difficulty arises under data protection law: would it be fair to share that personal information with the prospective employer?
The difficulty is enhanced because fairness – so pivotal to data protection analysis – has had little or no legal treatment.
This week’s judgment of Mr Justice Cranston in AB v A Chief Constable  EWHC 1965 (QB) is in that sense a rare thing – a judicial analysis of fairness.
AB was a senior police officer – specifically, a chief superintendent. He was given a final written warning in 2009 following a disciplinary investigation. Later, he was subject to further investigation for allegedly seeking to influence the police force’s appointment process in favour of an acquaintance of AB; this raised a number of serious questions, including about potential dishonesty, lack of integrity, and so on.
AB was on sick leave (including for reasons related to psychological health) for much of the period when that second investigation was unfolding. He was unhappy with how the Force was treating him. He got an alternative job offer from a regulator. He then resigned from the Force before the hearing concerning his alleged disciplinary offences. His resignation was accepted. The Force provided him with a standard reference, but the Chief Constable then took the view that – given the particular, unusual circumstances – he should provide the prospective employer with a second reference, explaining the allegations about AB.
The second reference was to say inter alia that:
“[AB’s] resignation letter pre-dated by some 13 days a gross misconduct hearing at which he was due to appear to face allegations of (i) lack of honesty and integrity (ii) discreditable conduct and (iii) abuse of authority in relation to a recruitment issue. It is right to record that he strenuously denied those allegations. In the light of his resignation the misconduct hearing has been stayed as it is not in the public interest to incur the cost of a hearing when the officer concerned has already resigned, albeit his final date of service post-dating the hearing.”
AB objected to the giving of the second reference and issued a section 10 notice under the Data Protection Act 1998. The lawfulness of the Force’s proposed second reference arose for consideration by Cranston J.
The first issue was this: was the Chief Constable legally obliged to provide a second reference explaining those concerns?
Cranston J held that, in terms of the common/private law duty of care (on the Hedley Byrne line of authority), the answer was no. As a matter of public law, however – and specifically by reference to the Police Conduct Regulations – the answer was yes: “the Chief Constable was obliged by his duty to act with honesty and integrity not to give a standard reference for the recipient because that was misleading. Something more was demanded. In this case the Chief Constable was prima facie under a duty to supply the Regulatory Body at the least with the information about disciplinary matters in the second reference.”
Note the qualifier ‘prima facie’: the upshot was that the duty was displaced if the provision of the second reference would breach the DPA. This raised a number of issues for the Court.
First, no information about AB’s health could be imparted: this was sensitive personal data, and the Chief Constable did not assert that a Schedule 3 DPA condition was met (as required under the First Data Protection Principle).
What about the information as to the disciplinary allegations AB faced? This was not sensitive personal data. Therefore, under the First Data Protection Principle, it could be disclosed if to do so would be (a) fair, (b) lawful, and (c) in accordance with a Schedule 2 condition.
The last two were unproblematic: given the prima facie public law duty to make the second reference here, it would lawful to do so and condition 3 from Schedule 2 would be met.
This left ‘fairness’, which Cranston J discussed in the following terms:
“There is no definition of fairness in the 1998 Act. The Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995, to which the 1998 Act gives effect, contains a reference to protecting privacy rights, as recognised in article 8 of the European Convention on Human Rights and in general principles of EU law: recital 10. However, I cannot accept Mr Lock QC’s submission that the duty of fairness under the Directive and the 1998 Act is a duty to be fair primarily to the data subject. The rights to private and family life in Article 8 are subject to the countervailing public interests set out in Article 8(2). So it is here: assessing fairness involves a balancing of the interests of the data subject in non-disclosure against the public interest in disclosure.”
In conducting this balance between the interests of AB and those of others (including the public interests), Cranston J ultimately – on the particular facts – concluded that it would have been unfair to provide the second reference. There were strong fairness arguments in favour of disclosure – a see paragraph 78 (my emphasis):
“… The focus must be on fairness in the immediate decision to disclose the data [as opposed to a wider-ranging inquiry into the data subject’s conduct in the build-up to disclosure]. In this case the factors making it fair to disclose the information were the public interest in full and frank references, especially the duty of the police service properly to inform other police forces and other regulatory bodies of the person they are seeking to employ. To disclose the information in the second reference would patently have been fair to the Regulatory Body, so it could make a rounded assessment of the claimant, especially given his non-disclosure during the application process.”
However, the balance tipped in AB’s favour. This was partly because the Force’s policy – as well as the undertaken specifically given to AB – was to provide only a standard reference. But (see paragraph 79):
“… what in my view is determinative, and tips the balance of fairness in this case in favour of the claimant, is that he changed his position by resigning from the Force and requesting it to discontinue the disciplinary proceedings, before knowing that the Chief Constable intended to send the second reference. That second reference threatened the job which he had accepted with the Regulatory Body. It is unrealistic to think that the claimant could have taken steps to reverse his resignation in the few weeks before it would take effect. Deputy Chief Constable CD for one had indicated that he would not allow it. The reality was that the claimant was in an invidious position, where in reliance on what the Force through GH had said and done, he was deprived of the opportunity to reinstate the disciplinary proceedings and to fight the allegations against him. This substantive unfairness for the claimant was coupled with the procedural unfairness in the decision to send the second reference without giving him the opportunity to make representations against that course of action. Asking him to comment on its terms after the final decision to send the second reference was too little, too late.”
Therefore, because of unfairness in breach of the DPA and because of AB’s legitimate expectations, the second reference was not lawful.
While Cranston J rightly emphasised the highly fact-specific nature of his overall conclusion, aspects of his discussion of fairness will potentially be of wider application.
So too will his reminder (by way of quoting ICO guidance) that, when it comes to section 10 notices, “Although this [section 10] may give the impression that an individual can simply demand than an organisation stops processing personal data about them, or stops processing it in a particular way, the right is often overstated. In practice, it is much more limited”. Again, in other words, a balancing of interests and an assessment of the justification for the processing is required.
With the ‘right to be forgotten’ very much in vogue, that is a useful point to keep in mind.
Robin Hopkins @hopkinsrobin