Bullying in confidence

BullyingUK, a leading anti-bullying charity, commented:

“We think it’s a serious breach of confidentiality for an anti-bullying charity to reveal details like this…it will deter other people from coming forward for help if they think that anti-bullying charities are going to splash their employer’s name all over the media.”

For her part, Ms Pratt advanced a public interest defence, saying she spoke out:

“…because we were concerned that an employer here, and No 10 no less, was going into instant denial when allegations of bullying were levied and that is not how an employer ought to behave in 2010.”

The situation raises legal questions of confidentiality. Has there in fact been a breach of confidence, and if there has, can it be excused on the basis of a public interest in answering Downing Street’s “…instant denials”?

Recalling Megarry J’s basic formulation, there has obviously been unauthorised disclosure, and this may lead to detriment. Does the disclosed information “have the necessary quality of confidence”, and was there an obligation of confidence in respect of it?

Initially, the information disclosed probably didn’t have that necessary quality: the fact that complaints were received from a specific employer, even a specific office, is unlikely to be confidential information in and of itself. Such information doesn’t identify the complainants, save in the smallest organisations, and it is difficult to see the mere fact of a complaint, as opposed to its content or the identity of its author, being confidential in and of itself.

Questions about anomymised disclosures of sensitive personal data have come before the Information Tribunal, in the context of the interplay between the Freedom of Information Act and the Data Protection Act. The Tribunal has held – notably in the Pro-Life Alliance case last October – that anonymised information which cannot identify data subjects may be disclosed without breaching the DPA. It would be odd if such information was inherently confidential.

However, the Daily Mail claims that when interviewed by them, Ms. Pratt said:

“At least one of the callers who we were in correspondence with was suffering from work-related stress and had time out of the office.”

and as BullyingUK pointed out:

“Gordon Brown’s office is small and [this] will almost certainly identify this person who turned to the helpline in despair.”

Information which can directly identify individuals as having made an allegation of bullying will necessarily constitute personal data (and possible sensitive personal data) for the purposes of the DPA. As such (if for no other reason) it is highly likely to be found to have the necessary quality of confidence.

Was there a duty of confidence in this case? Recalling Lord Goff’s formulation:

“…a duty of confidence arises when confidential information comes to the knowledge of a person…in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others.”

the operators of a bullying charity would struggle to avoid being under a duty of confidence to those contacting their helpline. The charity’s own website states that

“Your call is confidential to us and you will be treated with dignity and respect at all times.”

As regards the individual making the disclosure, other professional obligations may arise. The Chartered Institute of Personal and Development code of conduct has nothing so stringent as Rule 4 of the Solicitors Code of Conduct, but it does state:

“CIPD members provide specialist professional knowledge, advice, support and management competence in the management and development of people. In all circumstances they…must respect legitimate needs and requirements for confidentiality.” (Paragraph 4.1.7).

Taken together, it seems likely that the charity corporately either accepted or acknowledged a duty of confidence to those calling its helpline, and that Ms. Pratt herself had professional obligations to, at the least, carefully consider any disclosure before making it.

Turning to the question of public interest, does challenging Downing Street’s denials permit the disclosure of this information? In the Campbell v MGN case, it was held the public interest was served by showing denials of a “drug problem” to be false, the House of Lords considering that it was necessary to conduct “…a balancing operation, weighing the public interest in maintaining confidence against a countervailing public interest favouring disclosure”.

With such a balancing operation, the initial disclosure (that there had been calls from the Prime Minister’s Office to the National Bullying Helpline) must surely be upheld, but this would probably not be the case for the further disclosure of information which may identify an individual complainant – and at that point any breach of confidence almost inevitably becomes a breach of that individual’s privacy.

This matter is unlikely to come before a court, but it would be interesting to see how that balancing operation was performed in a situation where the person to whom an obligation of confidentiality or privacy is owed isn’t the person at whom the disclosure is aimed. Would the innocence of the person to whom the obligation is owed raise the threshold for finding that the public interest in disclosure prevails?

With the Charity Commission acknowledging complaints about the National Bullying Helpline, and the original allegations about the Prime Minister continuing to provoke debate, the situation will no doubt throw up further question of legal interest.