Assume Disclosure on Creation of all HR Documents

by Barry Walsh, Partner and Head of the Employment Team at Fieldfisher.

What takes 30 seconds to write may cost you to undo!

Instant electronic communications are part of the everyday work place.

However, employees also have an extensive awareness of their data protection rights and an ability to force disclosure of internal communications relating to them. This is exemplified in a recent WRC case which highlights the importance of employers being aware of the content of such communications.

The Complainant in this case commenced employed in 2015 and fourteen months into her role was notified that her performance had been mediocre and that she had four months to turn her performance around. The Complainant achieved a number sales in the aftermath of this letter and she was taken off “probationary status”.

In April 2018 the Complainant again received a similar notification from her employer giving her one month to achieve two new sales or face a final written warning. However unbeknownst to the Complainant, the COO and the owner of the Respondent had discussed the Complainant by email. These emails only came to light after the commencement of the WRC hearing (between the second and last day of hearing) as a consequence of a data subject access request.

The emails described the Complainant as “a problem that needs to be fixed” with one email stating “I’ve made up my mind I am letting her go in the next few weeks”. A further email confirms that the employer was looking for a replacement “I don’t want to hire (her) until we are quite sure (the Complainant) will not be around”. The employer argued that the emails needed to be contextualised, but the WRC Adjudicator found the emails to be unambiguous and capable of having an ordinary meaning applied to them. An additional claim by the employer that the emails were legally privileged was rejected.

In her evidence at the WRC Hearing the Complainant commented that she felt that the outcome of the appeal of a warning seemed pre-determined and that everything seemed “orchestrated”. In the circumstances the Complainant resigned and submitted a constructive dismissal complainant to the WRC on the basis she was given unrealistic sales targets and that the employer’s conduct was such that she had no reasonable alternative other than to tender her resignation.

The WRC Adjudicator found in favour of the Complainant and commented that “I accept fully that the Complainant felt that the outcome had been orchestrated because, as it happens, it was”. The Complainant was awarded €50,000. Interestingly, and somewhat unusually, this ruling was made in circumstances where it was acknowledged that the Complainant did not utilise the employer’s internal grievance procedure and did not give the employer any notice of her intention to resign. While that arguably goes against the grain of many constructive dismissal decisions, more to the point, the case serves as a useful reminder of the power of data subject access requests for claimant employees.

We often advise employer clients that, when creating documents about employees, they should assume disclosure and be able to stand over whatever is written. Of course, employers should note that personal data that is processed for the purpose of seeking, receiving or giving legal advice is exempt from disclosure.

(ADJ-00019702), December 2019.

About the author
Barry Walsh is Partner and Head of the Employment Team at Fieldfisher. Barry advises a wide range of Irish and multinational corporate, public and institutional clients on all aspects of Irish employment law from recruitment to retirement including contentious, advisory and transactional work. Barry is experienced in acting for clients with respect to contractual and termination issues with senior executives. In addition to advising on employment law, he has also advises on industrial relations issues arising from mergers and acquisitions, outsourcing and redundancy situations. He has significant litigation experience and has directly represented clients before the European Court of Justice, the Irish civil courts and all specialist Irish employment tribunals.

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