Introduction – Performance Appraisals and the Law
It would be exceptional for an individual to go through their professional career without, at some point, them receiving feedback from their employer, which they considered unwarranted or unjustified.
The vast majority of people who receive such criticism during their performance appraisal, while slightly perturbed, make no further enquiries or raise any additional issues. They simply put that aspect of their appraisal down to an oversight of their hard work, dedication and performance. Some decide to challenge those assumptions indirectly or formally inform their employer of the perceived error.
However, in exceptional circumstances, an employee may seek a legal recourse to challenge, what they perceive, to be an unfair appraisal.
Discretion in drafting a Performance Appraisal
The law in general gives employers a considerable degree of discretion when drafting the performance appraisals of their employees. Performance appraisals, by their very nature, are expected to highlight certain concerns the employer perceives in the competence, capability or output of their employees. So long as the criticisms do not veer into the realm of defamation, an employer is unlikely to face any legal challenge to a critical appraisal no matter how angry or emotional their employee feels about it.
A recent decision by the Office of the Information Commissioner (OIC) (MR Y -v- Defence Forces – OIC 114048/D5M8P9) illustrates the degree of discretion an employer is afforded when drafting a performance appraisal.
Rectification of Performance Appraisal
Articles 16 and 19 of the General Data Protection Regulation (GDPR) allows an employee to have their data rectified by their employer without undue delay if the data held by the employer on them is inaccurate. Furthermore, if the personal data held on an employee is incomplete, the employee has a right to have their data completed including by means of providing a supplementary addendum.
The right of rectification is restricted in certain circumstances under Section 60 of the Data Protection Act, 2018, which provides for restrictions that are necessary for important objectives of public interest and by Section 40 of that Act, which seeks to balance the right of rectification with the right of freedom of expression and information.
Similarly, Section 9 of the Freedom of Information Act, 2014 (FOI Act), provides for a right of amendment of incomplete, incorrect or misleading personal information in a record held by an FOI body.
An FOI body is usually a state or semi-state organisation that conforms to the definition in Section 6(1) of the FOI Act, 2004 unless they are specifically exempt in whole or in part either in Section 42 or in Schedule 1 of the FOI Act.
The Defence Forces of Ireland is a qualifying FOI body.
Application for Rectification of Performance Appraisal
The applicant was a member of the Defence Forces. On 18 December 2020, he applied to the Defence Forces, through the OIC, for the amendment of his performance appraisal for 2016. The applicant had used the internal Defence Forces processes to seek an amendment to his performance appraisal previously, to no avail.
On 06 October 2021, the applicant sought a review of the decision not to amend his performance appraisal by the OIC.
The OIC noted that the FOI Act is silent on the question of where the onus of proof lies in cases seeking rectification of incomplete, incorrect or misleading personal information in a record held by an FOI body.
The OIC considered that the absence of any express statement in the FOI Act places a burden of proof on the applicant as the party certain that the information is incomplete, incorrect or misleading. The OIC also noted that the FOI Act is also silent as to the standard of proof which should apply in such cases. The OIC went on to note that the Office takes the view that the standard of proof required in such cases is that of the balance of probability. It follows, therefore, that an applicant seeking to exercise the right of amendment under Section 9 of the FOI Act, must show that the information which is the subject of the application is, on the balance of probabilities, incomplete, incorrect or misleading. Importantly, the OIC went on to note that the Office does not see its role arising from Section 9 of the FOI Act as being to conduct its own comprehensive enquiry as to the accuracy or completeness of the records held by a public body. Rather, it was noted that they must have regard to the evidence actually provided by the applicant and to any rebuttal evidence put forward by the FOI body and make a decision on that basis. Importantly, the OIC went on to note certain limitations with respect to the amendment of personal information:
“The Act is also silent as to the standard of proof which should apply in such cases. This Office takes the view that the standard of proof required in such cases is that of “the balance of probabilities”. It follows, therefore, that an applicant seeking to exercise the right of amendment under section 9 must show that the information which is the subject of the application is, on the balance of probabilities, incomplete, incorrect, or misleading.
This Office does not see its role arising from section 9 as being to conduct its own comprehensive enquiry as to the accuracy or completeness of records held by a public body. Rather, we must have regard to the evidence actually provided by the applicant, and to any rebutting evidence put forward by the FOI body and make a decision on that basis.
In requiring an applicant to provide evidence that the information in a record is actually incomplete, incorrect or misleading, this Office is not making any prior judgement as to the accuracy of a record. The fact that an applicant fails to provide sufficient evidence to enable the Commissioner to conclude that the information in a record is incomplete, incorrect or misleading will cause the records to remain undisturbed, but this does not carry any judgement on the part of the Commissioner that the record is, in fact, complete, correct and not misleading.”
Performance Appraisal and Personal Data
Crucially, the OIC referred to the subjective element of performance appraisals noting its limited power and will to amend the credible expressions of others, particularly those of an employer to an employee in respect of an employment relationship.
“The definition of “personal information” includes “the views or opinions of another person about the individual”. Thus, the right of amendment of personal information includes the right of amendment of opinions that are incorrect, in addition to the right of amendment of incomplete or misleading opinions. This Office takes the view, however, that section 9 does not permit the decision maker or the Information Commissioner to substitute a different opinion for the one in respect of which the application under section 9 is made.
While this Office has not identified an exhaustive list of the circumstances in which an opinion might be found to be “incomplete, incorrect or misleading”, we would expect an applicant to satisfy us that the opinion is somehow flawed, by reason of the total inadequacy of the factual information underlying it, or because of the existence of bias or ill will, or incompetence, lack of balance or necessary experience in the person forming the opinion, or because of some other particular factor which renders the opinion dangerous to rely upon. However, we would not be justified in directing an FOI body to amend its records on the sole basis of contrary statements or opinions, however strongly held, by the person seeking the amendment. Thus, the applicant’s assertions alone will not form sufficient evidence to warrant an amendment, in the absence of supporting evidence.”
Conclusion
The OIC, having carried out a review under Section 22 (2) of the FOI Act, affirmed the decision of the Defence Forces to refuse the application for an amendment of the applicant’s appraisal form for 2016.
It was noted that Section 24 of the FOI Act sets out a detailed provision for an appeal to the High Court by a party to review or any other person affected by the decision.
In summary, such an appeal, normally on a point of law, must be initiated not later than 4 weeks after the decision was given to the person bringing the appeal.
Takeaway
Although this case relates to a member of the Defence Forces exercising a right under the FOI right, it does seem likely that a similar conclusion could be reached by the Office of the Data Protection Commission in respect of any employee seeking to exercise their right under GDPR to the rectification of their performance appraisal in line with the relevant sections of that regulation.
