Kathryn Hopkins v The Commissioners for HM Revenue and Customs
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn |
| Judgment Date | 01 September 2020 |
| Neutral Citation | [2020] EWHC 2355 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB-2019-002322 |
| Date | 01 September 2020 |
[2020] EWHC 2355 (QB)
IN THE HIGH COURT OF JUSTICE
SITTING AT LIVERPOOL CIVIL & FAMILY COURT
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mrs Justice Steyn DBE
Case No: QB-2019-002322
Claimant appeared in person
David Mitchell (instructed by HMRC) for the Defendant
Hearing dates: 16 and 17 June 2020
Judgment Approved by the court for handing down
(subject to editorial corrections)
If this Judgment has been emailed to you it is to be treated as ‘read-only’. You should send any suggested amendments as a separate Word document.
A. Introduction
The Claimant, Dr Kathryn Hopkins, is a civil servant employed by the Defendant, Her Majesty's Revenue and Customs (“HMRC”).
The claim stems from the Claimant's arrest by Merseyside Police on 15 August 2018. In accordance with her contract of employment, she disclosed her arrest to her employer. The Claimant was suspended on full pay by HMRC pending disciplinary proceedings. More than two years after she was arrested, the position remains that the Claimant has not been charged with any offences (but nor has she been notified that the police investigation is closed). No disciplinary charges have been laid by HMRC, but the Claimant remains suspended. The primary focus of Dr Hopkins' claim against HMRC is her concern regarding the processing of her personal data, including criminal offence data, and the way in which the ongoing disciplinary proceedings have been handled, albeit her claim raises numerous causes of action.
By an application filed on 14 October 2019, and amended on 20 December 2019, HMRC seeks an order striking out the claim and/or for summary judgment in the Defendant's favour.
B. Open justice and anonymity
The hearing took place in open court in Liverpool. Dr Hopkins attended in person, accompanied by her McKenzie friend, Mr Bizimungu Joseph, and she represented herself. Counsel for HMRC, Mr David Mitchell, appeared via video link relayed from the Royal Courts of Justice.
In her Particulars of Claim, Dr Hopkins had made a request for anonymisation given the “ highly confidential nature of the personal information involved in this case”. However, when the matter came before Saini J on 25 October 2019, the Claimant chose not to pursue any application for anonymity. Accordingly, Saini J's order of 25 October 2019 records that the “ Claimant's applications are dismissed, save as regards the anonymity application on which no order is made”. At a telephone hearing before Nicklin J on 5 June 2020, Dr Hopkins confirmed that she was not seeking any order for anonymisation or restricted reporting. Dr Hopkins again confirmed this position in her skeleton argument and at the hearing before me of HMRC's application, at which she represented herself ably.
Accordingly, and perhaps unusually given the nature of the claim, there is no order for anonymity or restricted reporting. Nevertheless, I have borne in mind the sensitivity of the information and I have sought to avoid referring to it more than is reasonably necessary to explain my conclusion and reasons. In particular, although I have not referred to the evidence regarding the Claimant's health, the transcript of the Claimant's interview on 20 December 2018 or answers to follow up questions, or gone into the details of the offences for which the Claimant was arrested, I am fully aware of the evidence regarding these matters.
C. The facts
I have taken the facts from the Particulars of Claim, save to the extent that I have referred to the (undisputed) contents of correspondence.
The disciplinary proceedings
On 15 August 2018, the Claimant was arrested by Merseyside Police. The four offences for which she was arrested are identified in a letter dated 3 September 2018 sent by Merseyside Police to HMRC. It is unnecessary to set out the details of the alleged offences, and as no charges have (at least, as yet) been brought I shall refrain from doing so, save to say that all four offences are serious and they include an allegation of the commission of a serious sexual offence.
On 16 August 2018, the Claimant disclosed to her line manager, Darren Warren, that she had been arrested. She referred to the sexual offence for which she had been arrested, but not the other three offences. The Claimant has pleaded that she believed it was a contractual requirement to disclose this information to her line manager and he confirmed to her that it was a condition of her employment.
On 17 August 2018, Mr Warren required the Claimant to provide further information about the arrests.
Between 16 and 20 August 2018, Mr Warren disclosed the Claimant's arrest information to Internal Governance (a division of HMRC) and, the Claimant states, unidentified “others”. Internal Governance are alleged to have disclosed the information further within HMRC, including to Human Resources and the Press Office.
On 20 August 2018, the Claimant arrived at work and was immediately suspended and escorted out of the building by Mr Warren. She was provided with a letter notifying her of her suspension from duty.
On 4 September 2020, HMRC sent to the Claimant, by recorded delivery, a letter notifying her that she was the subject of a disciplinary investigation, to be conducted by Mr Neil Angus of Internal Governance Civil Investigations, to investigate concerns arising from her arrest by Merseyside Police for the four offences identified in their letter to HMRC of 3 September 2018. Prior to this letter being sent, Mr Warren telephoned the Claimant to inform her that she was under investigation for possible gross misconduct, that a potential outcome would be dismissal, and to forewarn her of the letter of 4 September. The Claimant states that she did not collect the letter from the Royal Mail office until a week or so after the attempted delivery.
The Particulars of Claim state that the 4 September letter caused the Claimant distress and her mental health deteriorated. On 2 October 2018 she informed her line manager that she was going on sick leave due to stress. This developed into “ very severe anxiety and depression”.
On 5 November 2018, Mr Warren sent the Claimant a message that he needed to hand-deliver a letter to her from Internal Governance, so that they could interview her. She responded that she was unwell. On 15 November 2018, Mr Warren sent the Claimant a further message and on 17 November 2018 the Claimant received a letter from him sent by recorded delivery which she did not open.
On 18 November 2018, the Claimant wrote letters to:
i) Mr Warren, stating that she believed his conduct amounted to harassment and she would be communicating with Jane Whittaker from now on.
ii) Ms Whittaker, stating that she would like to initiate a number of formal grievances (without identifying them) and that she did not wish to be contacted while she was on sick leave.
iii) Sean Whellams, asking for the suspension and investigation to be halted, and alleging that the proposed investigation was unfair, unlawful and in breach of the GDPR.
Ms Whittaker responded in a letter dated 5 December 2018:
“Thank you for your letter dated 18 November. I confirm that I have received the fit note for the period 3 November to 14 December, and copies of your letters to Darren and Sean (also dated 18 November). I am sorry to hear that you are unwell.
I understand that you do not want to engage with or be contacted by work at the moment. However, we do need to keep in touch during your absence. I am attaching the relevant HMRC guidance for you.
I take from your letter to me and the letter that you sent to Darren that you do not want him to continue as your keep in touch manager and that you would prefer to keep in touch with me whilst you are away. I am content to take on this role.
We will need to agree how frequently we will contact each other, the method (face to face, phone call, text/email) and, if you are too unwell to keep in touch with me directly, whether there is a family member or other person you would like to liaise with me on your behalf. The absolute minimum expectation is that we are in touch at least once every 6 weeks. The purpose of keep in touch arrangements is to support your wellbeing so I hope that we can find a way to fulfil the HR requirements that will work for you.
I also want to stress that the keep in touch manager's role is separate from HMRC's disciplinary process. You will receive a separate response to the letter you sent to Sean.
Please confirm that you have received this letter and let me know your preferences on keeping in touch arrangements.”
The Claimant responded by letter dated 6 December 2018:
“Thank you for your letter. I have been advised not to open it because of the risk to my health and well being. I (or my advocate) will continue to provide you with medical certificates and will let you know as soon as I am well enough to engage with work again.”
On 13 December 2018, Ms Whittaker and Dan Coughlin, Human Resources Director, delivered by hand to the Claimant, at her home, a letter dated 12 December 2018 from Mr Angus.
The letter of 12 December 2018 from Mr Angus invited the Claimant to attend an interview to investigate the concerns referred to in Mr Whellams' letter of 4 September 2018, as well as further concerns that on 29 July 2018 she hired a car under HMRC corporate policy and, when the car was stopped by the Police later that day due to it being driven...
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Employer's Processing Of Employee's Criminal Offence Data Deemed Lawful Under GDPR *
...compliance periodically to ensure it is fit for purpose. * Kathryn Hopkins v The Commissioners for Her Majesty's Revenue and Customs [2020] EWHC 2355 (QB) Originally Published By , November This article contains a general summary of developments and is not a complete or definitive statement......