High Court:(AB v A Chief Constable) has found that the provision of reference containing details of uncompleted disciplinary action was “unfair” use of personal data.
Whether it is “fair” to share an individual’s personal data for lawful public policy reasons requires a careful balancing of the interests of that individual and the interests of others, including the public interests, the High Court in England has said.23 Jun 2014.
The claimant, described only as AB, was a senior police officer with the defendant Chief Constable’s police force (“the Force”).
The claimant had joined the Force in 1988 after being a special constable. Apart from a short period with another police force he spent the whole of his career with the Force. During his time with the other force he had been subject to professional criticism for his role in a high profile investigation although the investigation did not lead to any disciplinary charges against the claimant. He became a Chief Superintendent. For a relatively short period he was seconded to another police organisation. At the time of his resignation he had been a member of the local Criminal Justice Board and was involved in the Police Superintendents’ Association.
In 2009 the claimant was disciplined for misconduct and accepted the charge. He was given a Final Written Warning. This is the most serious sanction in a misconduct case. He appealed this sanction on the ground, inter alia, that the disciplinary action imposed was unreasonable and disproportionate. The appeal was determined by the acting chief constable of another police force who dismissed the appeal and expressed concern that the panel’s powers were restricted to those associated with misconduct rather than gross misconduct. In his view the claimant’s explanations in response to the allegations raised further concern about his honesty and integrity and the evidence presented strong grounds to question whether the claimant should hold the office of constable and the rank of Chief Superintendent. On the evidence I conclude that it is rare for so senior a police officer to receive a final warning.
An action plan was devised for the claimant to address issues raised by the misconduct finding. The claimant met periodically with Assistant Chief Constable E to discuss its implementation. Eventually the Chief Constable accepted that the action plan had been completed and signed it off in May 2011.
At a later stage AB applied to a Regulatory Body for a job. A Regulatory Body has, as one aspect of its functions, ensuring the professional standards of individuals it regulates and deciding who can be disciplined and ultimately prevented from working in the area.
The Force sent a standard reference which did not answer questions in the Regulatory Body’s reference request raising the claimant’s sickness and disciplinary record. The Regulatory Body gave the claimant the job and he resigned from the Force.
Then, in a novel twist the Chief Constable, contending that he was under a legal duty in both private and public law, sent a second reference with the information at issue.
AB’s case is that the Chief Constable is under no such duty. If the Chief Constable is correct and there is a legal duty the claimant contends that to send the second reference would be in breach of data protection principles and his legitimate expectations.
In this case, the High Court found that a reference sent by a police force to the new employer of a former chief superintendent was unlawful, as it contained unfair details of pending disciplinary action against the officer which had been dropped as the officer resigned before the hearing.
No details of the disciplinary allegations were ‘sensitive personal data’, which meant that they could be disclosed if to do so would be fair, lawful and in accordance with one of the conditions set out in Schedule 2 of the Data Protection Act (DPA).
Mr Justice Cranston said that on the facts of this particular case, the “balance of fairness” tipped towards the officer. Although there were strong arguments in favour of disclosure of the data, AB had no means of challenging the decision to send the reference to his prospective new employer, he said.
“The focus must be on fairness in the immediate decision to disclose the data,” the judge said. “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 policy 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.”
“But what in my view is determinative, and tips the balance of fairness in this case in favour of [AB], 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 … The reality was that [AB] 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 [AB] 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,” he said.
In his previous employment with an unnamed police force, AB had been given a final written warning in 2009 following a disciplinary investigation. Later, AB was subject to further investigation for allegedly seeking to influence the recruitment process in favour of a person with whom he had a relationship. While the investigation was taking place, AB was on sick leave including for reasons related to psychological health. AB then got an alternative job offer from a regulatory body, and resigned from the police force without having been charged with any disciplinary offence.
The police force provided AB with a standard reference, as was its policy. However, the chief constable later decided that a second reference should be provided which included details of the outstanding allegations against AB. AB challenged the provision of this second reference under the DPA via a ‘section 10 notice’, which allows a data subject to object to the processing of personal data in a way that causes unwarranted and substantial damage or distress.
The court held that, ordinarily, the provision of the second reference would have been unlawful. However, the Police Conduct Regulations required “something more” than a standard reference in this case. Mr Justice Cranston said that the chief constable had a “duty to act with honesty and integrity not to give a standard reference for the recipient because that was misleading”. However, that duty would be overruled if the provision of the second reference would breach the DPA, he said.
The DPA prohibits the disclosure of personal data unless it is “fair” and “lawful” to do so and certain additional conditions are satisfied, the judge said, The DPA would not allow the chief constable to share information about AB’s health with his prospective new employer, as this was “sensitive personal data” in terms of the Act and so subject to additional stricter tests. .
The question of lawfulness was easy to resolve given the chief constable’s public law duties, the judge said. However, it was more difficult to resolve the question of fairness as neither the DPA nor the European legislation on which it was based contained a definition. The judge rejected AB’s claim that the duty of fairness was “a duty to be fair primarily to the data subject”; finding instead that “assessing fairness involves a balancing of the interests of the data subject in non-disclosure against the public interest in disclosure”.
It was only after measuring AB’s interests in non-disclosure with the interests in favour of disclosure that he was able to rule in AB’s favour, he said.
Whilst is it clear the fact of this case are peculiar to references provided on a statutory basis, there is in principle no reason why employers are not under a similar duty to balance the needs of the former employee with those of their obligation to provide a fair and honest reference in good faith.
Specifically, where disciplinary matters are discontinued or uncompleted, they should not be cited in any reference and another major point is that if the firms pol;icy is to use standard references then that policy applies to everyone equally.
Citation:  EWHC 1965 (QB) AB v A Chief Constable