This week's interesting retweet by the Chief Executive of Rutland County Council Helen Briggs
THE SINGLE BIGGEST KILLER OF MEN AGED UNDER 45 IN THE UK ISN’T DRUG RELATED, A TRAFFIC ACCIDENT, OR A HEART ATTACK.
IT’S SUICIDE.
www.biggerissues.co.uk
Talking about suicide has not always been a welcome subject at Rutland County Council
People have been reported to the police for asking questions regarding the suicide of
an employee.
Rutland County Council has spent considerable sums of money and used plenty
of police resources in an attempt to silence those who ask questions.
Today I was told about the following report produced by Rutland County Councils favorite
naf solicitor's Bevan Brittan, I wonder how many more thousands of taxpayers money
they received for this additional report.
I think after reading this report and the actions of the Chief Executive after his death, Aman Mehara must have done something very seriously wrong. Because if he had just stolen a few pens why
would anyone go to such lengths to keep the reason a secret?
Report to Rutland County Council
Rutland Anti-Corruption Party
Supplemental Report
Introduction
1 This report is supplemental to our report of 16 November 2012.
2 In Paragraphs 19 and 20 of that report we referred to the limitations to Councillor’s “Need
to Know”, and that excessive demands for information can amount to harassment. Our
attention has now been drawn to an exchange of correspondence between Councillor
Richardson and Kim Sawyer, Deputy Monitoring Officer, in respect of the death of Mr.
Mehra, a Director of the Council.
Summary of Facts
3 The following information has been provided by the Council and is in the public domain –
3.1 Aman Mehra, the Council's Strategic Director for Places was suspended from duty
by the Chief Executive on Friday 15th June 2012 to enable a disciplinary
investigation to be undertaken. Following his suspension, Council staff were advised
that Aman Mehra would be absent from work for an indefinite period of time. This
Council's Employment Solicitor has confirmed that this process of suspension was
conducted in accordance with the Council's approved procedures;
3.2 Later on 15 June, Aman Mehra took his own life. The Council's disciplinary
investigation was terminated and the matter was placed in the hands of the
Coroner, who was provided with access to all relevant Council records and
materials;
3.3 On Monday 18th June 2012, the Chief Executive advised all Council staff of Aman
Mehra's death;
3.4 Following the inquest, the Coroner confirmed that Aman Mehra had taken his own
life and that there was no evidence that the Council's disciplinary inquiry was other
than appropriate;
3.5 Following the inquest Aman Mehra's widow was provided with her husband's
employment record as next of kin and requested the Council for absolute discretion,
and that no information relating to his employment record be disclosed to anyone
else, under any circumstances;
3.6 Also following the inquest, the Chief Executive met Aman Mehra's sister and father
at the Coroner's request;
3.7 Since then, the Chief Executive and Deputy Chief Executive have remained in touch
with Aman Mehra's widow to offer continuing support in the face of speculative blog
postings and media articles. The Council has respected her right to confidentiality
and has declined to provide any additional information relating to Aman Mehra's
employment to any person.
4 In answer to a member’s question, the Deputy Chief Executive informed Council at its
meeting on 12th September 2012 that the Council’s Employment Solicitor had confirmed
Appendix B to Report No.13/2013
that, to the best of her knowledge, the Council had acted in accordance with its approved
personnel and disciplinary procedures. Councillor Richardson was present at that
meeting.
5 Following these events, the Chief Executive received several requests from members of
the Council for disclosure of Mr. Mehra’s employment records. In response to these
enquiries, Kim Sawyer as the Council’s Head of Legal Services sent an Advice Note to all
Councillors on 30 September 2012 setting out why the Council could not disclose Mr.
Mehra’s employment records to Councillors. A copy of this Advice Note is attached at
Appendix A to this Supplemental Report.
6 On 1 October 2012, Councillor Gale emailed to the Chief Executive with copies to all
Councillors, saying that members of the RAC Group had been contacted by and had met
members of Aman Mehra’s family. He suggested that there was a conflict between an
email from the Deputy Chief Executive stating that the family did not want to take the
matter further and wanted no further contact from the Council and an assertion by
members of the family to the RAC members. He asked –
6.1 In what circumstances the Deputy Chief Executive had made her statement;
6.2 Had there been some form of agreement (presumably between the family and the
authority);
6.3 Had some form of compensation been agreed;
6.4 What was so serious for a senior officer to be suspended for an indefinite period on
full pay and that could not be disclosed to Councillors at the time.
7 The Chief Executive responded, copies to all Councillors, on 1 October 2012 to say that –
7.1 the Council had engaged extensively with Aman Mehra’s widow, and with other
members of his family;
7.2 it was her discretion as to whether information relating to Mr. Mehra’s employment
and suspension be disclosed to other members of his family;
7.3 he had already been informed that the Council’s Monitoring Officer, Legal Advisor,
the Police and the Coroner had all indicated that they were satisfied that the Council
had provided all appropriate information;
7.4 that the Council’s Monitoring Officer and Legal Officer had confirmed that the
Council’s actions were appropriate and in accordance with the Council’s
procedures;
7.5 and that she would not be answering his specific questions as they were insensitive
and inappropriate.
She went on to say that she felt that his questions contained personal and insulting
allegations against herself, likely to cause distress.
8 Also on 1 October 2012, Councillor Begy replied to Councillor Gale. He confirmed that no
comment would be made without the consent of Aman Mehra’s next of kin, and confirmed
that she, and the Police and Coroner, had been informed of all information held by the
Council. He stated that there was no conspiracy or cover up, but that Aman Mehra’s
widow did not want the information disclosed. He sought Councillor Gale’s assurance that
he was not seeking to make political capital out of this event.
Appendix B to Report No.13/2013
9 Councillor Gale replied to the Chief Executive, copies to all Councillors, on 1 October
2012 to say that he made no allegations against the Chief Executive personally or
professionally, but that he believed that his questions were appropriate and that he felt
that he had a responsibility as a Councillor to ask questions to satisfy himself that all was
in order and that he would continue to seek a clear understanding of the circumstances
surrounding the suspension of Aman Mehra and what followed.
10 The Chief Executive replied on 8 October 2012, copies to all Councillors, as follows –
“I will repeat again. The information you are seeking cannot be released, on legal advice,
and I view your continued probing as threatening to me personally and professionally.
Further requests asking me to release this information could be interpreted as harassment
and I will seek legal advice if this takes place.”
11 On 12 October, Councillor Richardson emailed to Councillor Begy, copies to all
Councillors referring to Councillor Begy’s reply to Councillor Gale and with a long list of
questions relating to this matter. Councillor Richardson’s Email is set out at Appendix B to
this report.
12 On 3 October, the Chief Executive had emailed to Aman Mehra’s sister advising her that
she was not aware of a request from the family, as reported by Councillor Gale, that the
family did not want further contact from the Council. She then confirmed that in respect of
any disclosure of sensitive and confidential information, she was bound by the wishes of
Aman Mehra’s widow. Aman Mehra’s sister responded to the Chief Executive, copying in
Councillor Gale, on 12 October 2012, saying that she was disappointed with this advice
and asking a number of questions relating to Aman Mehra’s employment and suspension
and asking for an independent inquiry. Councillor Gale copied this email to all Councillors
on 15 October, stating that he had asked all Councillors for the subject to be investigated
but that request had been refused, and asking whether Councillors wished to “reconsider
or give the reasons for total silence because so far that reasoning is too flimsy and open
to challenge.”
13 On 15 November 2012, Councillor Richardson emailed to Kim Sawyer requesting
information relating to the Council’s handling of Mr. Mehra’s disciplinary investigation and
suspension. Councillor Richardson’s email is attached as Appendix C to this
Supplemental Report. Councillor Richardson followed up his email with email requests for
a substantive response on 26 November and 12 December 2012. On 18 December, the
Head of Legal Services replied that an assurance was given at the Council meeting in
September that in the opinion of the Council’s employment lawyer all proper employment
procedures had been followed, and that it would not be appropriate for her to discuss
confidential employment issues with Councillor Richardson for the reasons set out in her
advice of the 30 October sent to all Councillors.
Analysis
14 Councillors Richardson and Gale have been advised repeatedly that the conduct of the
Chief Executive and other officers of the Council in responding to the disciplinary issues
relating to Aman Mehra and suspending him complied with the Council’s approved
procedures, both by verbal assurance at full Council on 12 September and in subsequent
correspondence. That has been confirmed by the statement of the Coroner that there
Appendix B
to Report No.13/2013
was no evidence that the Council's disciplinary inquiry was other than appropriate.
Despite this, they continue to question publicly whether the conduct of Council officers,
and particularly the Chief Executive, complied with Council procedures.
15 Councillors Richardson and Councillor Gale have been advised repeatedly, in
correspondence and in the Head of Legal Services’ Advice Note to all Councillors, that
the Council cannot disclose personal information relating to Aman Mehra’s employment
or suspension without the consent of Aman Mehra’s widow as his next of kin. Despite this
repeated advice, they continue to request the Chief Executive particularly for disclosure
of personal information relating to his employment and suspension, challenging the
authority of the Chief Executive in refusing to provide that information.
16 Despite being advised repeatedly that the decision of Amna Mehra’s widow must prevail,
Councillors Gale and Richardson have continued to champion the requests of his sister
and family for disclosure of personal information relating to his employment and
suspension.
17 Councillors Gale and Richardson have raised the matter in open Council and sought an
investigation. That request has been rejected by a majority of Council.
18 Councillors Gale and Richardson have been advised by the Chief Executive that she
feels that their repeated questioning of her advice and her decision not to disclose
personal information relating to Aman Mehra’s employment and suspension without the
consent of his widow is a challenge to her personal and professional integrity and
constituted harassment. Despite this, they have continued publicly to challenge her
advice and decision.
19 Councillors Gale and Richardson are aware that matters relating to employment of staff
are delegated to the Employment and Appeals Committee. Councillor Wainwright, who is
the third member of the Rutland Anti-Corruption Party, is a member of that Committee. As
the Head of Legal Services has explained in her advice note, Councillors Gale and
Richardson, not being members of that Committee, have no common law “need-to-know”
in respect of employment matters. If the RACP have genuine concerns about the conduct
of the Chief Executive and other officers, there is a proper course of action which is for
Councillor Wainwright to move that the Committee request the Chief Executive to account
to the Committee for her conduct and the conduct of other officers, which process can be
conducted in private session.
20 Taking Councillor Richardson’s email of 15 November 2012, the questions which he
poses under Items 1, 2 and 3 clearly seek the disclosure of personal information relating
to Aman Mehra’s employment and suspension, which Councillor Richardson has been
told repeatedly that the Council cannot disclose without the consent of his widow. The
questions under Items 4 and 5 relate to the conduct of officers and particularly the Chief
Executive following Aman Mehra’s death, and the appropriate course is via Employment
and Appeals Committee
21 I am of the opinion that the conduct of Councillors Gale and Richardson in this matter has
long passed the point of reasonableness and amounts to harassment of the Chief
Executive and of other officers, and has gone beyond the point of mere questioning to the
Appendix B
to Report No.13/2013
point of defamation of the Chief Executive, of other officers and of the authority. In giving
this opinion, I have particular regard to the following –
21.1 Councillors Gale and Richardson’s persistence in questioning the conduct of the
Chief Executive and other officers and in challenging the Chief Executive’s advice
and decision that she cannot disclose personal information relating to Aman
Mehra’s employment and suspension without his widow’s consent, long after they
have been advised that she considers their conduct to amount to harassment;
21.2 their failure to use the proper channels for questioning the conduct of officers;
21.3 the public manner in which they have conducted a concerted campaign, even to the
point of holding demonstrations on the highway near the Council’s offices,
displaying placards relating to this matter.
Peter Keith-Lucas
Local Government Partner
For Bevan Brittan LLP
19th December 2012.
Appendix A
Head of Legal Services Advice Note to all Councillors
Advice on disclosure of employment records
I am asked to advise the Chief Executive about disclosure of employment records relating to Aman
Mehra, a former Director of Rutland County Council.
Aman Mehra passed away on 15 June 2012. He had been the subject of an internal investigation
as part of the Council’s process for instigating disciplinary proceedings. As a result of information
that came to light during the investigation Aman was suspended. A coroner’s inquest was held
and concluded that Aman had committed suicide.
Aman’s next of kin, his wife, was given all relevant information regarding his employment with the
Council. As this information related to Aman’s employment it was considered to be sensitive
personal information and because of the nature of allegations that information was also
considered to be confidential.
Aman’s wife asked for that information to remain confidential and for the Council and the Coroner
not to disclose information relating to the investigation process.
The Chief Executive has been advised that in agreeing to that request the Council has entered into
a duty of confidence with Mrs Mehra. The duty of confidence is a legal relationship and as such
the disclosure of any information could amount to breach of that duty for which Court action can
be brought. Therefore the Chief Executive has been advised that there should be no disclosure of
Aman’s employment records.
Several requests have been made by members of the Council for disclosure of the employment
records. Requests have also been made by Aman’s family, not the next of kin, but close relatives
for disclosure of that information.
This advice sets out the relevant issues and clarifies the advice given to the Chief Executive.
The issues for consideration are:
(1) Why is this information confidential?
(2) Can a deceased’s information remain confidential after death?
(3) Who has the right to a deceased’s information after his death?
(4) What are the rights of the wider family?
(5) What are the rights of Councillors to access confidential information?
Confidential information
Generally information which is obtained during the course of employment is confidential. For
most employees, information that is given to the employer is personal data which is subject to
Appendix B
to Report No.13/2013
protection by the Data Protection Act 1988. This means that the employer cannot disclose that
data without complying with the requirements of the Act.
The protection of personal data under the Act however only applies to living individuals. But it
does not automatically follow therefore that the Council can disclose personal information relating
to a deceased employee. If the information is no longer protected by the Data Protection Act, the
Council has to consider whether information obtained during employment is protected by a duty
of confidence owed by the employer to the former employee or to those entitled to the
deceased’s information after death.
The duty of confidence arises if two circumstances exist:
• The information is confidential in nature – this means something which is not public
property or public knowledge" (Saltman Engineering Co Limited v Campbell Engineering Co
Limited [1948]); and
• It is disclosed "in circumstances importing an obligation of confidence" (Coco v A N Clark
(Engineers) Limited [1969)
There is no doubt that the relationship between employer and employee creates an expectation
that the employer will keep the employees records confidential. It is reasonable for an employee
to expect that any information given by them during the course of an investigation under the
disciplinary process will be treated confidentially, unless and until the public interest in revealing
that information supersedes the employee’s personal interest. That part of the process is reached
when the employer or the employee makes a decision to terminate the employment and/or
exercise a right of appeal, in the public domain, about the reason for termination.
In this case, Aman passed away before the disciplinary process had been complete. This means
that his records contain allegations which cannot now be fully investigated and, more importantly,
against which he has no right of reply. The investigatory process was not public knowledge until
the announcement of his suspension was made. Even then no particular details of the disciplinary
process or the reasons for suspension were made public. It is clear that an obligation of
confidence regarding the disciplinary process existed on the date of Aman’s death.
It is therefore reasonable to conclude that as this information was imparted with an expectation of
confidentiality that a duty of confidence was therefore owed to Aman.
(b) Does that duty survive beyond death?
There is no binding authority on whether the duty of confidentiality can survive the death of the
deceased but it is likely that it does. In a case heard by the Information Tribunal (Bluck v
Appendix B
to Report No.13/2013
Information Commissioner) the Tribunal upheld the decision of the Information Commissioner
refusing to disclose medical records of a deceased patient to her mother.
The mother had made a request for the hospital records following the death of her daughter but
that request was refused. The records had been released to the daughter’s next of kin who had
been consulted by the hospital about whether the next of kin would consent to release of the
records. The next of kin asked that the papers remain confidential.
The Information Commissioner was of the view that the duty of confidentiality to the deceased
survived her death and that the only person able to bring an action for breach of confidentiality
was the next of kin. Therefore the next of kin was the only person to whom the records could be
disclosed.
(c) Is there a right of disclosure to other parties?
There are obviously many similarities between the Bluck case and the circumstances of Aman’s
case. A duty of confidentiality is said to exist, there has been disclosure of documents to the next
of kin and the next of kin has asked that the confidentiality of those records be respected.
There is authority therefore to refuse to release documents to the next of kin. But what about
Councillors? Do Councillors have a general right to inspect Council documents?
The legal rights of Councillors to inspect Council documents are covered partly within statute and
partly by the common law. Councillors have a statutory right to inspect any Council document,
which contains material relating to any business, which is to be transacted at a Council, Committee
or Sub-Committee meeting. This right applies irrespective of whether the Councillor is a member
of the Committee or Sub-Committee concerned and extends not only to reports, which are to be
submitted to the meeting, but also to any relevant background papers.
This right does not however apply to documents which are not to be considered at Council,
Committee or Sub-Committee or which may appear in the confidential section of the agenda for
meetings.
Within a local authority it is the Chief Executive who has responsibility for the administration of
staffing matters (other than senior management reorganisation) and individual staffing matters
are generally not the subject of a Council report unless the staff member chooses to exercise a
right of appeal to the Employment Committee.
Reports which contain exempt information relating to Councillors, employees, occupiers of Council
property, applicants for grants and other services, the care of children, contract and industrial
relations negotiations, advice from Counsel and criminal investigations are generally restricted to
only certain members.
Appendix B
to Report No.13/2013
The common law right of Councillors is much broader and is based on the principle that any
Councillor has a prima facie right to inspect Council documents so far as his/her access to the
document is reasonably necessary to enable the member properly to perform his/her duties as a
member of the Council. This principle is commonly referred to as the "need to know" principle.
The exercise of this common law right depends upon the Councillor’s ability to demonstrate that
he/she has the necessary "need to know". In this respect a Councillor has no right to "a roving
commission" to go and examine documents of the Council. The crucial question is the
determination of the "need to know."
In some circumstances a Councillor’s "need to know" will normally be presumed. In other
circumstances where the information is personal or sensitive a Councillor will be expected to
justify the request in specific terms.
How does this relate to Aman’s records? These records are not subject to general inspection by all
Councillors. They are confidential employment records which in the ordinary course of Council
business would not come before Councillors for their information or decision. As discussed
earlier, the confidentiality of these records does not cease as a result of Aman’s death and
therefore any Councillor who wishes to inspect these records must demonstrate a ‘need to know’.
Given the very sensitive nature of these records and that any breach of the duty of confidence is
actionable in a court, the need to know must demonstrate very sound reasons for release of the
documentation.
Not only is there no evidence of any reasons justifying release of these document, it is also noted
that those Councillors who are calling for the release of the documents are doing so on behalf of
the wider family. It has already been established that without the consent of the next of kin, the
wider family has no right to inspection of the documents (as above).
For this reason I have therefore advised the Chief Executive that she should not consent to release
of the records to those members. To do so would put the Council at risk of challenge.
To summarise therefore:
(1) the employment records are confidential and sensitive
(2) the records can only be released to next of kin
(3) without consent of the next of kin they cannot be released to the wider family
(4) without demonstration of the ‘need to know’ the information should not be released to
those councillors requesting it
(5) it is not likely that the ‘need to know’ can be justified where the councillors are
representing the views of the wider family
(6) release of confidential papers without the consent of the next of kin is likely to be
actionable breach of the duty of confidence
Appendix B
to Report No.13/2013
Kim Sawyer
Head of Legal Services
Peterborough and Rutland Councils
Full report here:
http://www.rutland.gov.uk/pdf/13-2013%20RACG%20-%20App%20B%20-%2010%2001%2013.pdf
THE SINGLE BIGGEST KILLER OF MEN AGED UNDER 45 IN THE UK ISN’T DRUG RELATED, A TRAFFIC ACCIDENT, OR A HEART ATTACK.
IT’S SUICIDE.
www.biggerissues.co.uk
Talking about suicide has not always been a welcome subject at Rutland County Council
People have been reported to the police for asking questions regarding the suicide of
an employee.
Rutland County Council has spent considerable sums of money and used plenty
of police resources in an attempt to silence those who ask questions.
Today I was told about the following report produced by Rutland County Councils favorite
naf solicitor's Bevan Brittan, I wonder how many more thousands of taxpayers money
they received for this additional report.
I think after reading this report and the actions of the Chief Executive after his death, Aman Mehara must have done something very seriously wrong. Because if he had just stolen a few pens why
would anyone go to such lengths to keep the reason a secret?
Report to Rutland County Council
Rutland Anti-Corruption Party
Supplemental Report
Introduction
1 This report is supplemental to our report of 16 November 2012.
2 In Paragraphs 19 and 20 of that report we referred to the limitations to Councillor’s “Need
to Know”, and that excessive demands for information can amount to harassment. Our
attention has now been drawn to an exchange of correspondence between Councillor
Richardson and Kim Sawyer, Deputy Monitoring Officer, in respect of the death of Mr.
Mehra, a Director of the Council.
Summary of Facts
3 The following information has been provided by the Council and is in the public domain –
3.1 Aman Mehra, the Council's Strategic Director for Places was suspended from duty
by the Chief Executive on Friday 15th June 2012 to enable a disciplinary
investigation to be undertaken. Following his suspension, Council staff were advised
that Aman Mehra would be absent from work for an indefinite period of time. This
Council's Employment Solicitor has confirmed that this process of suspension was
conducted in accordance with the Council's approved procedures;
3.2 Later on 15 June, Aman Mehra took his own life. The Council's disciplinary
investigation was terminated and the matter was placed in the hands of the
Coroner, who was provided with access to all relevant Council records and
materials;
3.3 On Monday 18th June 2012, the Chief Executive advised all Council staff of Aman
Mehra's death;
3.4 Following the inquest, the Coroner confirmed that Aman Mehra had taken his own
life and that there was no evidence that the Council's disciplinary inquiry was other
than appropriate;
3.5 Following the inquest Aman Mehra's widow was provided with her husband's
employment record as next of kin and requested the Council for absolute discretion,
and that no information relating to his employment record be disclosed to anyone
else, under any circumstances;
3.6 Also following the inquest, the Chief Executive met Aman Mehra's sister and father
at the Coroner's request;
3.7 Since then, the Chief Executive and Deputy Chief Executive have remained in touch
with Aman Mehra's widow to offer continuing support in the face of speculative blog
postings and media articles. The Council has respected her right to confidentiality
and has declined to provide any additional information relating to Aman Mehra's
employment to any person.
4 In answer to a member’s question, the Deputy Chief Executive informed Council at its
meeting on 12th September 2012 that the Council’s Employment Solicitor had confirmed
Appendix B to Report No.13/2013
that, to the best of her knowledge, the Council had acted in accordance with its approved
personnel and disciplinary procedures. Councillor Richardson was present at that
meeting.
5 Following these events, the Chief Executive received several requests from members of
the Council for disclosure of Mr. Mehra’s employment records. In response to these
enquiries, Kim Sawyer as the Council’s Head of Legal Services sent an Advice Note to all
Councillors on 30 September 2012 setting out why the Council could not disclose Mr.
Mehra’s employment records to Councillors. A copy of this Advice Note is attached at
Appendix A to this Supplemental Report.
6 On 1 October 2012, Councillor Gale emailed to the Chief Executive with copies to all
Councillors, saying that members of the RAC Group had been contacted by and had met
members of Aman Mehra’s family. He suggested that there was a conflict between an
email from the Deputy Chief Executive stating that the family did not want to take the
matter further and wanted no further contact from the Council and an assertion by
members of the family to the RAC members. He asked –
6.1 In what circumstances the Deputy Chief Executive had made her statement;
6.2 Had there been some form of agreement (presumably between the family and the
authority);
6.3 Had some form of compensation been agreed;
6.4 What was so serious for a senior officer to be suspended for an indefinite period on
full pay and that could not be disclosed to Councillors at the time.
7 The Chief Executive responded, copies to all Councillors, on 1 October 2012 to say that –
7.1 the Council had engaged extensively with Aman Mehra’s widow, and with other
members of his family;
7.2 it was her discretion as to whether information relating to Mr. Mehra’s employment
and suspension be disclosed to other members of his family;
7.3 he had already been informed that the Council’s Monitoring Officer, Legal Advisor,
the Police and the Coroner had all indicated that they were satisfied that the Council
had provided all appropriate information;
7.4 that the Council’s Monitoring Officer and Legal Officer had confirmed that the
Council’s actions were appropriate and in accordance with the Council’s
procedures;
7.5 and that she would not be answering his specific questions as they were insensitive
and inappropriate.
She went on to say that she felt that his questions contained personal and insulting
allegations against herself, likely to cause distress.
8 Also on 1 October 2012, Councillor Begy replied to Councillor Gale. He confirmed that no
comment would be made without the consent of Aman Mehra’s next of kin, and confirmed
that she, and the Police and Coroner, had been informed of all information held by the
Council. He stated that there was no conspiracy or cover up, but that Aman Mehra’s
widow did not want the information disclosed. He sought Councillor Gale’s assurance that
he was not seeking to make political capital out of this event.
Appendix B to Report No.13/2013
9 Councillor Gale replied to the Chief Executive, copies to all Councillors, on 1 October
2012 to say that he made no allegations against the Chief Executive personally or
professionally, but that he believed that his questions were appropriate and that he felt
that he had a responsibility as a Councillor to ask questions to satisfy himself that all was
in order and that he would continue to seek a clear understanding of the circumstances
surrounding the suspension of Aman Mehra and what followed.
10 The Chief Executive replied on 8 October 2012, copies to all Councillors, as follows –
“I will repeat again. The information you are seeking cannot be released, on legal advice,
and I view your continued probing as threatening to me personally and professionally.
Further requests asking me to release this information could be interpreted as harassment
and I will seek legal advice if this takes place.”
11 On 12 October, Councillor Richardson emailed to Councillor Begy, copies to all
Councillors referring to Councillor Begy’s reply to Councillor Gale and with a long list of
questions relating to this matter. Councillor Richardson’s Email is set out at Appendix B to
this report.
12 On 3 October, the Chief Executive had emailed to Aman Mehra’s sister advising her that
she was not aware of a request from the family, as reported by Councillor Gale, that the
family did not want further contact from the Council. She then confirmed that in respect of
any disclosure of sensitive and confidential information, she was bound by the wishes of
Aman Mehra’s widow. Aman Mehra’s sister responded to the Chief Executive, copying in
Councillor Gale, on 12 October 2012, saying that she was disappointed with this advice
and asking a number of questions relating to Aman Mehra’s employment and suspension
and asking for an independent inquiry. Councillor Gale copied this email to all Councillors
on 15 October, stating that he had asked all Councillors for the subject to be investigated
but that request had been refused, and asking whether Councillors wished to “reconsider
or give the reasons for total silence because so far that reasoning is too flimsy and open
to challenge.”
13 On 15 November 2012, Councillor Richardson emailed to Kim Sawyer requesting
information relating to the Council’s handling of Mr. Mehra’s disciplinary investigation and
suspension. Councillor Richardson’s email is attached as Appendix C to this
Supplemental Report. Councillor Richardson followed up his email with email requests for
a substantive response on 26 November and 12 December 2012. On 18 December, the
Head of Legal Services replied that an assurance was given at the Council meeting in
September that in the opinion of the Council’s employment lawyer all proper employment
procedures had been followed, and that it would not be appropriate for her to discuss
confidential employment issues with Councillor Richardson for the reasons set out in her
advice of the 30 October sent to all Councillors.
Analysis
14 Councillors Richardson and Gale have been advised repeatedly that the conduct of the
Chief Executive and other officers of the Council in responding to the disciplinary issues
relating to Aman Mehra and suspending him complied with the Council’s approved
procedures, both by verbal assurance at full Council on 12 September and in subsequent
correspondence. That has been confirmed by the statement of the Coroner that there
Appendix B
to Report No.13/2013
was no evidence that the Council's disciplinary inquiry was other than appropriate.
Despite this, they continue to question publicly whether the conduct of Council officers,
and particularly the Chief Executive, complied with Council procedures.
15 Councillors Richardson and Councillor Gale have been advised repeatedly, in
correspondence and in the Head of Legal Services’ Advice Note to all Councillors, that
the Council cannot disclose personal information relating to Aman Mehra’s employment
or suspension without the consent of Aman Mehra’s widow as his next of kin. Despite this
repeated advice, they continue to request the Chief Executive particularly for disclosure
of personal information relating to his employment and suspension, challenging the
authority of the Chief Executive in refusing to provide that information.
16 Despite being advised repeatedly that the decision of Amna Mehra’s widow must prevail,
Councillors Gale and Richardson have continued to champion the requests of his sister
and family for disclosure of personal information relating to his employment and
suspension.
17 Councillors Gale and Richardson have raised the matter in open Council and sought an
investigation. That request has been rejected by a majority of Council.
18 Councillors Gale and Richardson have been advised by the Chief Executive that she
feels that their repeated questioning of her advice and her decision not to disclose
personal information relating to Aman Mehra’s employment and suspension without the
consent of his widow is a challenge to her personal and professional integrity and
constituted harassment. Despite this, they have continued publicly to challenge her
advice and decision.
19 Councillors Gale and Richardson are aware that matters relating to employment of staff
are delegated to the Employment and Appeals Committee. Councillor Wainwright, who is
the third member of the Rutland Anti-Corruption Party, is a member of that Committee. As
the Head of Legal Services has explained in her advice note, Councillors Gale and
Richardson, not being members of that Committee, have no common law “need-to-know”
in respect of employment matters. If the RACP have genuine concerns about the conduct
of the Chief Executive and other officers, there is a proper course of action which is for
Councillor Wainwright to move that the Committee request the Chief Executive to account
to the Committee for her conduct and the conduct of other officers, which process can be
conducted in private session.
20 Taking Councillor Richardson’s email of 15 November 2012, the questions which he
poses under Items 1, 2 and 3 clearly seek the disclosure of personal information relating
to Aman Mehra’s employment and suspension, which Councillor Richardson has been
told repeatedly that the Council cannot disclose without the consent of his widow. The
questions under Items 4 and 5 relate to the conduct of officers and particularly the Chief
Executive following Aman Mehra’s death, and the appropriate course is via Employment
and Appeals Committee
21 I am of the opinion that the conduct of Councillors Gale and Richardson in this matter has
long passed the point of reasonableness and amounts to harassment of the Chief
Executive and of other officers, and has gone beyond the point of mere questioning to the
Appendix B
to Report No.13/2013
point of defamation of the Chief Executive, of other officers and of the authority. In giving
this opinion, I have particular regard to the following –
21.1 Councillors Gale and Richardson’s persistence in questioning the conduct of the
Chief Executive and other officers and in challenging the Chief Executive’s advice
and decision that she cannot disclose personal information relating to Aman
Mehra’s employment and suspension without his widow’s consent, long after they
have been advised that she considers their conduct to amount to harassment;
21.2 their failure to use the proper channels for questioning the conduct of officers;
21.3 the public manner in which they have conducted a concerted campaign, even to the
point of holding demonstrations on the highway near the Council’s offices,
displaying placards relating to this matter.
Peter Keith-Lucas
Local Government Partner
For Bevan Brittan LLP
19th December 2012.
Appendix A
Head of Legal Services Advice Note to all Councillors
Advice on disclosure of employment records
I am asked to advise the Chief Executive about disclosure of employment records relating to Aman
Mehra, a former Director of Rutland County Council.
Aman Mehra passed away on 15 June 2012. He had been the subject of an internal investigation
as part of the Council’s process for instigating disciplinary proceedings. As a result of information
that came to light during the investigation Aman was suspended. A coroner’s inquest was held
and concluded that Aman had committed suicide.
Aman’s next of kin, his wife, was given all relevant information regarding his employment with the
Council. As this information related to Aman’s employment it was considered to be sensitive
personal information and because of the nature of allegations that information was also
considered to be confidential.
Aman’s wife asked for that information to remain confidential and for the Council and the Coroner
not to disclose information relating to the investigation process.
The Chief Executive has been advised that in agreeing to that request the Council has entered into
a duty of confidence with Mrs Mehra. The duty of confidence is a legal relationship and as such
the disclosure of any information could amount to breach of that duty for which Court action can
be brought. Therefore the Chief Executive has been advised that there should be no disclosure of
Aman’s employment records.
Several requests have been made by members of the Council for disclosure of the employment
records. Requests have also been made by Aman’s family, not the next of kin, but close relatives
for disclosure of that information.
This advice sets out the relevant issues and clarifies the advice given to the Chief Executive.
The issues for consideration are:
(1) Why is this information confidential?
(2) Can a deceased’s information remain confidential after death?
(3) Who has the right to a deceased’s information after his death?
(4) What are the rights of the wider family?
(5) What are the rights of Councillors to access confidential information?
Confidential information
Generally information which is obtained during the course of employment is confidential. For
most employees, information that is given to the employer is personal data which is subject to
Appendix B
to Report No.13/2013
protection by the Data Protection Act 1988. This means that the employer cannot disclose that
data without complying with the requirements of the Act.
The protection of personal data under the Act however only applies to living individuals. But it
does not automatically follow therefore that the Council can disclose personal information relating
to a deceased employee. If the information is no longer protected by the Data Protection Act, the
Council has to consider whether information obtained during employment is protected by a duty
of confidence owed by the employer to the former employee or to those entitled to the
deceased’s information after death.
The duty of confidence arises if two circumstances exist:
• The information is confidential in nature – this means something which is not public
property or public knowledge" (Saltman Engineering Co Limited v Campbell Engineering Co
Limited [1948]); and
• It is disclosed "in circumstances importing an obligation of confidence" (Coco v A N Clark
(Engineers) Limited [1969)
There is no doubt that the relationship between employer and employee creates an expectation
that the employer will keep the employees records confidential. It is reasonable for an employee
to expect that any information given by them during the course of an investigation under the
disciplinary process will be treated confidentially, unless and until the public interest in revealing
that information supersedes the employee’s personal interest. That part of the process is reached
when the employer or the employee makes a decision to terminate the employment and/or
exercise a right of appeal, in the public domain, about the reason for termination.
In this case, Aman passed away before the disciplinary process had been complete. This means
that his records contain allegations which cannot now be fully investigated and, more importantly,
against which he has no right of reply. The investigatory process was not public knowledge until
the announcement of his suspension was made. Even then no particular details of the disciplinary
process or the reasons for suspension were made public. It is clear that an obligation of
confidence regarding the disciplinary process existed on the date of Aman’s death.
It is therefore reasonable to conclude that as this information was imparted with an expectation of
confidentiality that a duty of confidence was therefore owed to Aman.
(b) Does that duty survive beyond death?
There is no binding authority on whether the duty of confidentiality can survive the death of the
deceased but it is likely that it does. In a case heard by the Information Tribunal (Bluck v
Appendix B
to Report No.13/2013
Information Commissioner) the Tribunal upheld the decision of the Information Commissioner
refusing to disclose medical records of a deceased patient to her mother.
The mother had made a request for the hospital records following the death of her daughter but
that request was refused. The records had been released to the daughter’s next of kin who had
been consulted by the hospital about whether the next of kin would consent to release of the
records. The next of kin asked that the papers remain confidential.
The Information Commissioner was of the view that the duty of confidentiality to the deceased
survived her death and that the only person able to bring an action for breach of confidentiality
was the next of kin. Therefore the next of kin was the only person to whom the records could be
disclosed.
(c) Is there a right of disclosure to other parties?
There are obviously many similarities between the Bluck case and the circumstances of Aman’s
case. A duty of confidentiality is said to exist, there has been disclosure of documents to the next
of kin and the next of kin has asked that the confidentiality of those records be respected.
There is authority therefore to refuse to release documents to the next of kin. But what about
Councillors? Do Councillors have a general right to inspect Council documents?
The legal rights of Councillors to inspect Council documents are covered partly within statute and
partly by the common law. Councillors have a statutory right to inspect any Council document,
which contains material relating to any business, which is to be transacted at a Council, Committee
or Sub-Committee meeting. This right applies irrespective of whether the Councillor is a member
of the Committee or Sub-Committee concerned and extends not only to reports, which are to be
submitted to the meeting, but also to any relevant background papers.
This right does not however apply to documents which are not to be considered at Council,
Committee or Sub-Committee or which may appear in the confidential section of the agenda for
meetings.
Within a local authority it is the Chief Executive who has responsibility for the administration of
staffing matters (other than senior management reorganisation) and individual staffing matters
are generally not the subject of a Council report unless the staff member chooses to exercise a
right of appeal to the Employment Committee.
Reports which contain exempt information relating to Councillors, employees, occupiers of Council
property, applicants for grants and other services, the care of children, contract and industrial
relations negotiations, advice from Counsel and criminal investigations are generally restricted to
only certain members.
Appendix B
to Report No.13/2013
The common law right of Councillors is much broader and is based on the principle that any
Councillor has a prima facie right to inspect Council documents so far as his/her access to the
document is reasonably necessary to enable the member properly to perform his/her duties as a
member of the Council. This principle is commonly referred to as the "need to know" principle.
The exercise of this common law right depends upon the Councillor’s ability to demonstrate that
he/she has the necessary "need to know". In this respect a Councillor has no right to "a roving
commission" to go and examine documents of the Council. The crucial question is the
determination of the "need to know."
In some circumstances a Councillor’s "need to know" will normally be presumed. In other
circumstances where the information is personal or sensitive a Councillor will be expected to
justify the request in specific terms.
How does this relate to Aman’s records? These records are not subject to general inspection by all
Councillors. They are confidential employment records which in the ordinary course of Council
business would not come before Councillors for their information or decision. As discussed
earlier, the confidentiality of these records does not cease as a result of Aman’s death and
therefore any Councillor who wishes to inspect these records must demonstrate a ‘need to know’.
Given the very sensitive nature of these records and that any breach of the duty of confidence is
actionable in a court, the need to know must demonstrate very sound reasons for release of the
documentation.
Not only is there no evidence of any reasons justifying release of these document, it is also noted
that those Councillors who are calling for the release of the documents are doing so on behalf of
the wider family. It has already been established that without the consent of the next of kin, the
wider family has no right to inspection of the documents (as above).
For this reason I have therefore advised the Chief Executive that she should not consent to release
of the records to those members. To do so would put the Council at risk of challenge.
To summarise therefore:
(1) the employment records are confidential and sensitive
(2) the records can only be released to next of kin
(3) without consent of the next of kin they cannot be released to the wider family
(4) without demonstration of the ‘need to know’ the information should not be released to
those councillors requesting it
(5) it is not likely that the ‘need to know’ can be justified where the councillors are
representing the views of the wider family
(6) release of confidential papers without the consent of the next of kin is likely to be
actionable breach of the duty of confidence
Appendix B
to Report No.13/2013
Kim Sawyer
Head of Legal Services
Peterborough and Rutland Councils
Full report here:
http://www.rutland.gov.uk/pdf/13-2013%20RACG%20-%20App%20B%20-%2010%2001%2013.pdf
Suicide is the single biggest killer of guys under 45. We aren’t talking about it enough. Let’s talk #BiggerIssues thndr.me/AM6i3U
