Exclusive: Unite’s lawyers admit evidence submitted against Graham’s husband was destroyed

Legal letter attempting to block publication of other information contains extraordinary admission

In 2022, Skwawkbox revealed exclusively that Unite general secretary Sharon Graham had been accused of trying to have evidence against her husband, Jack Clarke, that had been put forward by male and female members of staff and including recordings of events they said substantiated their complaints of bullying and misogyny and even threats of violence by him – destroyed by union staff before she became Unite’s general secretary. The union declined to deny it.

Despite the complaints and a final warning from the union for his behaviour, Mr Clarke was promoted to run Unite’s ‘Bargaining and Disputes Support Unit’ (BDSU) after she took up the general secretary position – without following the union’s normal procedures.

Mr Clarke is now the subject of bullying complaints in an industrial dispute brought by staff working for him in the BDSU, who are represented at work by the GMB union. The GMB has accused Unite of ‘union-busting’ tactics after staff involved in the dispute were suspended by Unite – no managers accused of bullying were suspended – and of other tactics to intimidate staff and try to sabotage the dispute.

And while responding to a press enquiry from Skwawkbox about these and other allegations, lawyers acting for Unite as well as for Graham and Clarke personally have admitted that Clarke was recorded – and that the evidence against him was destroyed.

In a letter, the law firm casts the destruction as compliance with data laws:

Mr Clarke entirely rejects the allegations made against him as being without any foundation.

[Quoting Skwawkbox’s enquiry] “Ms Graham’s earlier attempts to have evidence against Clarke destroyed in similar complaints of bullying and misogyny“

In or around 2018, it emerged that Mr Clarke had been covertly recorded. These recordings, which we understand consisted of hours of audio, much of which would have been of no relevance to anyone other than Mr Clarke, and which naturally included the personal data of several third parties, were retained (and transcribed) by Unite in the course of a subsequent disciplinary investigation (the facts of which we address below). We understand that Mr Clarke was told at the time, that the recordings would not be retained for longer than was necessary, and would eventually be destroyed following the final outcome of the disciplinary investigation (and we would observe that any alternative approach would likely constitute a breach of the data protection principles enshrined in the UK GDPR).

Mr Clarke understands that the recordings are no longer on his personnel file and so believes them to have been destroyed accordingly. For Ms Graham’s part, she did not order their destruction. Indeed, she did not even become the General Secretary of Unite until August 2021, several years after the events in question. Any suggestion that Ms Graham has been complicit in some sort of wrongdoing would be entirely without foundation, and defamatory.

Skwawkbox did not report in 2022 that Ms Graham ‘ordered’ the destruction of the evidence against her husband. It reported that she tried in 2018 to have others – specifically the head of ‘Human Resources’ and the union’s then-chief of staff – destroy it before she became general secretary, and that they refused to do so. The union declined to respond to Skwawkbox’s questions at the time about whether she had ordered the destruction since she became general secretary, but Unite’s lawyers have now confirmed that it was at some point destroyed.

And rather than meeting a GDPR obligation, legal analysis suggests that destroying such evidence would put the union in breach of its disclosure obligations if an aggrieved or dismissed employee brought legal action against it:

The duty of disclosure is an ongoing obligation throughout a litigation process, with the duty continuing through to the end of a case and onto any appeal. If relevant documents are identified or created after litigation starts, they must immediately be disclosed to the other side, including those that may not support a party’s case. Moreover, the parties are under an obligation to preserve any relevant documents from the time that litigation is contemplated, meaning they must take reasonable steps to ensure documents are not destroyed or modified.
Failure to disclose relevant documents can have serious consequences, including adverse inferences being drawn by the tribunal, cost orders

Law firm Farrer and Co.

The lawyers then go on to claim that the recordings were of Mr Clarke accusing union figures of corruption, not of abuse as complained of by staff. Why they would record him doing that to support their claim of bullying and misogyny is unclear and no explanation was provided by the union or its lawyers, but the legal firm said:

As above, Mr Clarke was made subject of a disciplinary investigation in 2018, which resulted in him being issued with a formal warning for the use of “extreme language and rudeness in relation to senior figures of the union”. As above, Mr Clarke had been secretly recorded over a period of
months making allegations that senior figures in Unite were linked to corruption. For the avoidance of doubt, this “extreme language and rudeness” was not directed towards junior members of staff, but to then leadership of Unite. The warning lasted for 12-months and has therefore long-since expired.

Of course, the union has now admitted destroying the evidence of what Clarke said.

As noted, these admissions came out in the course of Skwawkbox enquiries about other serious allegations against Sharon Graham’s husband Jack Clarke and the questions they raised about Unite’s conduct in the dispute with the BDSU workers represented by GMB – but appear to be so extraordinary that they merited separate coverage. Skwawkbox will report on the other issues tomorrow.

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