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Everything posted by orfoster

  1. The ICO found that it was unlikely Lloyds had complied with the DPA - Lloyds have subsequently backdated the Default without contacting me to advise me, despite this being part of a court claim against them. So far, Good Result! Whether I manage to use this as leverage to have the adverse information removed in full as part of a settlement of the claim I don't know.....
  2. I think you're right to want to take time. I think they'll understand, this your job we are talking about here, it's important you have all the information to put your case, you have the right to appeal any final decision of a hearing but they should allow you time to put your case. The management side will have had that report ages (I'd hope) or at least longer than you so it's only fair you are able to prepare your defence. Especially as you say it's a detailed lengthy report. It does seem here the employer is overreacting, I don't understand why you've been suspended and I still don't see how this is gross misconduct based on what you've said - but that's why I don't sit on their side of the table I guess.
  3. Agree - The policy they allege you are in breach of is important. You need to protect your position and research the way in which disciplinary's are dealt with, ACAS have some excellent information on their website. It seems based on past experience your employer is a but trigger happy on disciplinaries.
  4. I think you should call for an adjournment based on the lack of clarity over the process, you have to have adequate time to prepare your case and by sending you the documents last night isn't adequate given the fact this is gross misconduct, what does the disciplinary policy say? Some are quite indepth and talk about the time you should have before a hearing and yes witnesses can be called. Check out the ACAS website for more information on disciplinary's. I would raise your objections to the inaccuracies in the report in writing before the hearing noting you've only just received them to be able to comment on the content and because of not being able to prepare your case you need an adjournment.
  5. Ok by working over 6 years you have employment rights, this means you are protected from being unfairly dismissed. It's important you aren't complacent and you've done the right thing seeking advice. Are you a member of a trade union? The issue you mention doesn't appear to be a disciplinary? It appears you talk about a grievance over a redundancy issue and not something you were penalised for? In any event you have nothing currently on your file, I am concerned based on the information you've given me about the alleged gross misconduct. I deal with these cases every day and this appears to be one of the most silly! You will have to prepare yourself to submit a statement to the hearing in a couple of days time, are you taking a colleague or a union rep in with you?
  6. I'm sure this is quite a stressful time for you. It's important that you challenge the inaccuracy of the report and that you do this in writing in order to evidence that you've done so and why, even if you do this verbally and then follow up in writing. When is your hearing? Have you seen all of the documents they intend to rely on ie witness statements of your colleagues?
  7. I'm sorry but this is utterly ridiculous. You've clearly evidenced the reasons you didn't exercise this good practice. It's a management issue in my view. What type of business does your employer undertake? Have you had any other disciplinary's? How long have you worked there?
  8. Well I was focussing on the fact that they had added inaccurate information to my Credit File which adds to unfairness. Here is what I was going to put in, this is in addition to what you've seen....... Description of Unfairness 5. The defendant's treatment of the claimant was unfair, not least because:- a. The claimant has held an account with the defendant for 7 years b. The charges and interest levied from the account added substantially to a period of financial difficulty c. The charges levied from the account total £748 and were levied throughout a short period of time during which the Claimant faced financial difficulty. 6. The Defendant marked the Claimants credit file in default on 24 December 2010 despite the Defendant alleging that a breach occurred a significant amount of time before, making the default marker inaccurate and unfair due to the added amount of time it will be present on the Claimants credit file. 7. The claimant submitted a complaint to the Information Commissioner, who on the 10 October 2013 wrote to the claimant confirming that it is unlikely the Defendant complied with requirements under the Data Protection Act in relation to the First principle, by placing a “default” on the account in December 2010 this placed the Claimant in a worse position than if no attempt to pay had been made. The Banking Conduct of Business Regulations (BCOB) 2009 which requires inter alia that firms treat their customers fairly (R.5.1.1) and further the Data Protection Act 1998 requires that an individual’s data is processed fairly in accordance with the act. 8. The Claimant therefore contends that the default is inaccurate. 9. The Claimant contends the Defendant has no legal right under statute to store process information with Credit Reference Agencies for six years nor does the Defendant have any legal right under statute to process any data with Credit Reference Agencies. 10. Failure of a Default to be accurate not only invalidates the Default (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give the Claimant a claim for damages. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119). 11. On 20 July 2008 the Claimant submitted that the Defendant stop processing information which the Claimant deemed to cause damage and distress. The Defendant failed to comply. 12. On 19 August 2013 the claimant filed a notice in accordance with s10 Data Protection Act 1998, the Defendant failed to comply or respond to the request. 13. The Claimant contests that the Defendants continued processing of his data is an unwarranted act and that the Defendant has failed to comply with a Statutory Notice pursuant to s.10 and s.12 of the Data Protection Act 1998. 14. The Claimants written permission allowing the Defendant to continue processing, or disclosing, personal subject data, does not exist. The Claimant also disputes the Defendants “Defaulting” of the accounts, which is visible on his Credit Reference files, for the reasons outlined above. The Claimant, therefore, considers any Default appearing on any Credit Reference Files in relation to these alleged agreements to be wholly unwarranted and unlawful. 15. The Claimant is afforded principled rights under the Data Protection Act 1998, Schedule 1, Part 1 (“The Principles”) in relation to the manner in which data is collated, stored and processed. Of particular note, Principles 3, 4 and 5; 3. Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed. 4. Personal data shall be accurate and, where necessary, kept up to date. 5. Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes. 15. In this case, the Defendant is processing data, which is unlikely to comply with the Data Protection Act to Credit Reference Agencies – that information being “publicly available. 16. The Defendant has continued to process data despite a comprehensive s10 request being served. 17. The Defendant is aware of the Information Commissioner Technical Guidance which describes the way in which “default” markers should be processed, further the Claimant explained this clearly to the Defendant on numerous occasions dating back to April 2013. 18. The Claimant further understands that on or around 10 October 2013 the Information Commissioner served upon the Defendant its position in the matter, the Claimant has not received any correspondence from the Defendant in relation to the matter. 19. The Claimant claims that the recording of “Default” information by the Defendant, against a credit file, in any manner, which would be unfair or inaccurate, would breach the Data Protection Act 1998. 20. The Claimant requests damages in accordance with s13 of the Data Protection Act 1998 for damages caused by the aforementioned breach. 21. The Claimant further requests an order from the Court in accordance with s14 of the Data Protection Act 1998. 22. By virtue of the above unfairness the claimant has suffered losses.
  9. Thanks. And leave everything else as it is. Just expand upon the rest? Grand. Thank you. I'll get application in on Wednesday.
  10. Hi Andy, Here are my initial POC's that went in...these aren't the proposed amended ones. Thanks for looking. [ATTACH=CONFIG]47991[/ATTACH]
  11. I would be interested to see! Currently pulling together responses for FOS complaint on them and Wonga.
  12. Have just today seen that Lloyds have changed the date the default was applied to my credit report. From December 2010 to September 2009, they've not written to me to confirm this at all they've just done it, this is following the ICO complaint outcome. Should I still submit amended POC's? I assume the damage had already occurred as I have evidence of the first and now evidence of the change. I guess I remove the s14 DPA request for an order to put it right and just claim for inaccurate information?
  13. Hello, Do you think I should now leave the damages up to the court in relation to the DPA breach? If so what fee may be involved?
  14. Draft Order for Directions 1. The Claimant shall within 14 days of service of this order send to the Defendant and to the Court: a) the amended Particulars of Claim. If the Claimant fails to comply with this order, the claim will be struck out without further order. 2. The Defendant shall within 14 days thereafter file and serve upon the Claimant and to the Court; a) the amended Defence. If the Defendant fails to comply with this order, the Defence will be struck out without further order. 3. The Claimant requests costs in the submission of this application. Is that all it needs?
  15. Really sorry andyroch I am feeling a bit dim. I should request that the Defendant meets costs of the application? Sorry, could you explain? Cheers
  16. Costs? Do you mean that each side meets their own costs? I have thought about amending the total claim to include DPA damages as decided by the court. Would a fee be paid less what I've already paid for issuing the claim or is it all to be paid again? When I called the court they just said its £45 to make the application.
  17. Ok. Does anything else need to be included? I imagine the hearing will need to be rescheduled as well but do I put this in the application?
  18. Also on another note, my activism within me is telling me to have a t-shirt made up and stand outside the local branch surveying passers by/customers whether they believe its fair that Halifax provided misleading advice, broke a promise and have offered no resolution. I did this for my grandparents last year when Benson 4 Beds failed to replace a faulty bed which they said was ok, it worked really well! I had a settlement within an hour! Lol - maybe a bit much at the minute.........
  19. Just to let you know the ICO have now held that it is unlikely that Halifax have complied with the DPA for failing to provide information and note that they have still failed to comply. I have raised a separate complaint with Halifax and received an acknowledgement today, I am also sending another reminder to them tomorrow requesting the data or confirmation that it isn't held. I think if I don't receive it by the end of the year I'll be forced to request an order from the court.....I don't see I have any other option, I've sent them so many reminders now. The FOS have told me Halifax are in receipt of my request. Incase I haven't clarified this, I am asking for copies of calls taken back in November last year when I requested a payment holiday. Halifax said they don't store calls by calls history on a customers file nor are they searchable by name or account number so you need the name, time, call id of the person taking the call which is only located in the note (notes which were not ever disclosed to me but only disclosed to the FOS which is where I got the details). So back in mid October I requested the calls, its possible they don't have the calls. The reason I'm requesting the calls is because the bank have noted on the call "customer has reduction in income" which has resulted in the FOS saying I was in difficulty, obviously within the call I explained in much more detail the reason for this being temporary and why I wanted a payment holiday, I even said I'd pay it back in full by May/June 13 which is exactly what I did.
  20. Hello, Well SCM have not responded and are basically delaying "due to leave of caseworker" etc. I'm going to have to make the application now to amend the claim and proceed, although the hearing is set for 29 January. In the application (N244) I am putting the request and reason as ; I haven't proposed to enclose a draft order (should I?) I am expanding with the evidence box and putting; I would then supply the amended POC's with the required highlighted bits in accordance with the CPR. Is this ok? Should I be drafting an order or expanding further? It is still possible a settlement may occur when the caseworker returns from leave on 5 Dec but I'm not delaying this any longer. Cheers
  21. Brief update: FOS have said they will write to me with the next steps for referral to an Ombudsman (6 month wait). I have until; Wonga - 20 December to supply further evidence PayDay UK - no date given therefore accept 23 December will be ok. I'm gonna crack on with this later on!
  22. Ok I'll let them know. I've got lots of leave over Christmas, do you reckon I can request an extension until 23rd? It's currently the 9th.
  23. Hello, They've clarified in an e-mail to me that there is no legislation, its a contractual issue that is bound by both parties. The FCA have obviously done research on the whole issue of "misleading statements" and the fact that PDL's should come with health warnings, I will try and have a look at their massive document. I wonder if any of their findings would be useful? It was an adjudicator. What legal recourse at the moment does a consumer have for misleading financial advice from a PDL? Unfair relationship? COBs don't apply right? What about breach of contract (I think this is unlikely I guess)
  24. Hello everyone, Thanks for the recent posts. Ok I had the outcome from the FOS yesterday and have been giving it some thought and a bit of research but I need some help. 1. The FOS advised that the PDL is obliged under legislation to share info with CRA (clarified and they have conceded they are not, simply contractual issue). 2. They have stated "repaying any loan on time will help your credit rating, however this does not necessarily improve your ability to borrow money". 3. They have said its up to individual lenders to assess the position, some may view PDL as negative and may of course decline (yes - this is the bit missing from the PDL website!). 4. The FOS would only be able to recommend information was removed from a credit file if it was inaccurate (what even if the spirit in which the contract was entered into was based on misleading information?!). 5. By signing the agreement with Wonga I am legally bound by their terms and have consented to sharing of data. 6. Of course.....my complaint was not upheld. If I want to put more evidence to the FOS I must do so by 9 December. My next steps are to respond to their findings, my initial thoughts are; 7. I entered into a contract with Wonga on the basis of the information available to me and provided Wonga with the information they required on an accurate and honest basis, something which the company by virtue should have reciprocated. 8. In contrast had I not given an accurate financial position this would have been fraudulent, the fact that the company give information which is not accurate to the position is by virtue unfair and puts the consumer at a disadvantage when taking a financial decision, the treatment is unfair. 9. On balance a consumer without in depth knowledge would not be aware of the facts, you have clarified in your letter the true position, this is not the advertisement on the Wonga website, had the true position been communicated or no assertion was made I would not have taken a loan with them. 10. The FCA make it clear that in April 2014 they are regulating the misleading statements made on PayDay lenders websites (http://www.fca.org.uk/about/what/championing/consumer-credit). This is clearly based on evidence that Consumers are not aware of the risks when taking a pay day loan. I believe this strongly supports my position. 11. FOS have not taken a view on the content of the assertions made on the Wonga website at all as its not given reference, only that no one know how a lender might act, my view is that essentially that's not wholly relevant, Wonga make the clear assertion that by taking a loan it certainly won't damage your credit file and should even benefit it. There is NO health warning. (I know the FCA are brining one in in April 2014) but for now, what do we do? 12. I need to look up the ICO rules of giving "informed" consent, as surely by giving the consent its on the basis of the information available, if that isn't accurate what does it mean? Sorry if this is a bit of a crazy post but I thought I'd get it online now to get your knowledgeable, welcome and inspiring views. O
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