Employment and Criminal Law- an odd mix or the perfect partnership?

Employment and Criminal Law- an odd mix or the perfect partnership? I am often asked why I specialise in two such different areas of law. The obvious answer is that I am good at both and I enjoy both, but the more important answer is that they complement each other very well. Not just in the skill set required in the techniques of advocacy and client handling, but in the very facts of the cases and the essence of the law. For example, what happens when a departing employee takes with them confidential or sensitive information? What about harassment in the workplace that falls outside the usual discrimination provisions? In this article I briefly set out some legislation from the criminal law, which is of increasing use to deal with workplace issues.

Private Prosecutions- infrequently used:

A ‘private prosecution’ is a prosecution started by a private individual, or entity who/which is not acting on behalf of the police or other ‘prosecuting authority’, this includes, but is not limited to, an entity that has a statutory power to prosecute, such as the Information Commissioner’s Office (‘ICO’). Private prosecutions can be brought by companies as well as individuals. The RSPCA and Virgin Media are recent examples of such.

The right to bring private prosecutions is preserved by section 6(1) of the Prosecutions of Offences Act 1985, which states: ‘(1)… Nothing in this part shall preclude any person from instituting any criminal proceedings or conducting any criminal proceedings to which the Director’s duty to take over the conduct of proceedings does not apply.’

However, the Director of Public Prosecutions (‘DPP’) has the power under section 6(2) to take over any prosecution. The Crown Prosecution Service (‘CPS’) will take over and stop a case where they consider that there is no realistic prospect of conviction, or that prosecution would not be in the public interest. Therefore it is of vital importance that a potential prosecuting authority continually reviews the available evidence to ensure that the prosecution is in the public interest and that the threshold test is met.

Furthermore, in some cases the private prosecutor must seek the consent of the Attorney General or DPP before the commencement of proceedings.

Alternative causes of action to breach of contract or an injunction:

As an employment lawyer I know the importance of a well-drafted, and therefore enforceable, confidentiality clause in a Contract of Employment, affording the employer the option to sue for damages for breach of contract or apply for an injunction. But as a criminal lawyer I know that there are other and less frequently used options.

Taking information, which contains personal data, such as records, can constitute a criminal offence under section 55 of the Data Protection Act (‘DPA’) 1998; however a prosecution may only be made under the DPA with the consent of the ICO or the DPP.

Section 1 of the Computer Misuse Act (‘CMA’) 1990 makes it an offence to cause a computer to perform any function with the internet to secure access to any program or data held in any computer the person is not authorised to access. An offence under this section is punishable by a fine (unlimited for offences committed after 12th March 2015) or imprisonment (of up to two years) or both.

If, whilst copying confidential or sensitive information, the defendant erased or otherwise altered the original files, this can amount to criminal damage. Section 1(1) of the Criminal Damage Act 1971 states: ‘A person who without lawful excuse destroys or damages physical property belonging to another intending to destroy or damage such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.’ Alternatively, erasing the information can amount to theft contrary to the Theft Act 1968, if the defendant dishonestly appropriates property belonging to another with the intention to permanently deprive the other of it.

Finally, a defendant commits fraud by abuse of position pursuant to section 4 of the fraud Act 2006 if he occupies a position in which he is expected to safeguard, or not act against, the financial interests of another person, dishonestly abuses that position, and intends by his actions to make a gain for himself or cause loss to or expose another to a risk of loss.

Criminal sanctions for harassment:

What happens where there has been harassment, which is not discrimination under the Equality Act 2010 due to the absence of a protected characteristic, such as age, disability, sex, race, etc? What if the harassment does not culminate in a resignation affording the employee recourse in the tribunal for constructive dismissal?

Once again, the criminal law may have an alternative course of action under either the Protection from Harassment Act 1997, the Malicious Communications Act 1988, or the Communications Act 2003.

Section 1 of the Protection from Harassment Act 1997 provides: ‘(1) A person must not pursue a course of conduct- (a) Which amounts to harassment of another and (b) Which he knows or ought to know amounts to harassment of the other. (2) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.’

Section 3 (1) of the Act provides: ‘An actual or apprehended breach of section 1 may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.’

A course of conduct is conduct on at least two occasions (section 7 of the Act) which is targeted at an individual, calculated in an objective sense to cause distress and which is objectively judged to be oppressive and unreasonable. The conduct that constitutes harassment in a workplace setting was explained by Lord Nicholls in Majrowski v Guy’s & St Thomas’s NHS Trust [2006] UKHL 34 at paragraph 30 after discussing vicarious liability: ‘where the claim meets that requirement and the quality of the conduct said to constitute harassment is being examined, courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody’s day to day dealings with other people. Courts are well able to recognise the boundary between conduct, which is unattractive, even unreasonable, and conduct, which is oppressive and unacceptable. To cross the boundary from regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2.’

This position was reaffirmed by the Court of Appeal in Conn v Sunderland City Council [2007] EWCA Civ 1492 in that for a civil claim to succeed the conduct must satisfy section 1 and, by virtue of section 2, must constitute a criminal offence. In relation to a claim under the Protection from Harassment Act 1997 the limitation period is six years.

For written harassment or bullying, there is another potential remedy under section 1 of the Malicious Communications Act 1988 for communications, which are grossly offensive, indecent, obscene, menacing or false, provided there is in each case an intention to cause distress or anxiety. The offence is committed with the sending or transmitting and does not require the message to reach the intended recipient. In Connolly v DPP [2007] 1 All ER 1012 LJ Dyson stated that the words used in the statute are the ‘ordinary English words not used in a special sense’. He went on to say (obiter) that the protection definitely applies to communications sent to people in the workplace.

Under section 127 of the Communications Act 2003, there is a similar provision for any messages sent via a public electronic communications network, and following explanation in Chambers v DPP [2012] EWHC 2157, that the offence can occur using Twitter and it seems would also apply to services such as Facebook or LinkedIn. Therefore as it can be seen there is in fact a close synergy and inter-connectedness between these two seemingly different areas of law.

A knowledge of both is a useful tool. I have 11 years experience and have developed this niche practice as a specialist in both criminal and employment law and I welcome instructions in cases in either area, or in cases where there is a cross over between the two. Please contact my clerks for more information.

Sarah Hornblower – March 2017