Subject Access Request following dismissal

[michellecorlett2005]

My partner was lefthis employment following allegations regarding his behaviour. HIs union representation was extremely poor and resulted in him being forced to resign with what he believed to be a compromise agreement in place. He applied for new posts with other companies, and three days before his start date the offer of employment was retracted, on explanation it was because a temp had given out information regarding his disciplinary hearing and stated that he had resigned from employment during the disciplinary procedure. To make matters worse, the allegations have now appeared on a disclosure certificate and it is making life extremely difficult for him to get/sustain work.

However, I have been reading a couple of threads on here and I was wondering if I would be able to make a SAR under the data protection act to receive any info that is held on him. They have failed to provide any details of the meetings that were held, a reason for dismissal from the first meetings, not even a P45. I think that they have sent all the information to another address or blatantly not sent it to him. I also think that this causes serious issues for him re identity theft etc, he also seems confused as to what is going on in his bank account,

If anyone has any suggestions that would be wonderful

and to maybe query peoples opinions, what do you think of the three month cut off period for lodging a claim to the employment tribunial - what if you believe that the employer is going to stick to a deal only to find once that time limit has expired they start to stitch you up in every possible way - thoughts please

 

Cheers

Michelle

[patdavies]

However, I have been reading a couple of threads on here and I was wondering if I would be able to make a S.A.R - (Subject Access Request) under the data protection act to receive any info that is held on him.

 

Cheers

Michelle

 

You can't; he can.

[michellecorlett2005]

Well yeah, thanks for that, but I would need to write for him to sign. Am pleased that he can though.

Cheers

[Guest Old_andrew2018]

hi

I agree he should sent an SAR, are you looking for help with the letter, you see I am not much use at doing this I am aware that some current and ex HR specialists who use this site you could Pm a moderator with a link to your thread

 

Good Luck

[Guest weegirl]

The best thing to do is to lodge his IT1 to the tribunal office, DO NOT let this employer string this out until after the cut off point - this is a common tactic that is used often. Get the IT1 within the time frame, it is very difficult to get a case heard after the 3 month period. You can always withdraw the tribunal claim if you do get a settlement that you are happy with.

 

They could try and mess you around with an S.A.R - (Subject Access Request), but after his IT1 in lodged, he can then put in a notice to the respondent for 'Discovery of Documents' - you demand certain documents that you need for evidence. This starts a legal process wherein they have to comply, otherwise you can call a case management discussion at the Tribunal office, and the tribunal Chair will demand an explaination as to why the respondent hasn't handed over said documents - they need to have a damn good reason, otherwise you could hit them for wasted costs.

 

Be aware though that they can also hit you for a discovery of documents, this is if you have anything worth handing over. Sounds as if they have more than you.

 

If you need the legal wording for this, let me know and I will look out the documentation from my case and post it on for you.

[michellecorlett2005]

Hi Weegirl, thanks for that sounds brilliant, but unfortunately they strung it out and nothing was done until after the three month cut off point. I think we should try and convince a solicitor to try it out and even run a test case cause what they have done is completely despicable. I could do with some help with the letter and if you do have any documents I could look at that would be much appreciated

cheers

Michelle

[michellecorlett2005]

this is stupid, but how do I contact a moderator,

[Guest Old_andrew2018]

Hi

its not its not a stupid question at all, I've recently learnt how to myself

At the forum page, at the very end of the page I see that currently active section, clink on a green nane (they are the Moderators) then send a pm, with link, there must be a better way of doing it

hope that helps

 

Andy

[Weird Al Yankovic]

I have been reading a couple of threads on here and I was wondering if I would be able to make a S.A.R - (Subject Access Request) under the data protection act to receive any info that is held on him.

Depends what info you want, what info the employers record, how they record it, if they are even registered, if they even need to be, the nature of the employment etc etc

 

what do you think of the three month cut off period for lodging a claim to the employment tribunial - what if you believe that the employer is going to stick to a deal only to find once that time limit has expired they start to stitch you up in every possible way - thoughts please The ET will say, in as many words but will mean the same,... 'tough.'

This is ignorance of the law and is not an excuse. If you thought a deal was underway then this would still not have stopped you from claiming. The deal was not done-but the time limit was ticking away.

You could always have withdrawn it.

 

Cheers

Michelle

 

If you could elaborate a bit more then there may be some nugget of info that is useful, otherwise, I think your partner has an uphill struggle with what you have said thus far.

[michellecorlett2005]

Thanks for your comments there, I understand what you are saying, but my partner is somewhat complacent and despite my arguing that he should have seen a solicitor, he thought that he had covered all avenues with the disciplinary procedure.

 

The information we are trying to obtain includes minutes of disciplinary meetings, notes taken by the manager he put in a complaint of bullying against, copies of allegation, copies of letters showing that disciplinary procedures had been carried out properly. He worked for a Train Operating Company down south. Where would you find out if the company were registered. I am completely blind in all of this and just guessing at avenues to take to get some kind of recourse, I don't believe that we can go down ET route, even though he has been suffering depression for months now.

 

If the company had stuck by the agreement, he would now be in a totally different job within the same industry, getting on with his life and forgetting all the stuff that went on. the company stitched him up after the 3 months had gone by, and he in good faith didn't think they would do that. I have somewhat more experience with employers being rats, but he trusted in them and the union to do right and each time I mentioned doing anything he would just switch off or call me a nag and tell me to mind my own business (you know the deal, the way most men treat women who make more than one comment on a situation).

 

I don't really know how much more I can tell you, but if anyone knows of an avenue for recourse then any info would be greatly appreciated

thanks

Michelle

[inline66]

Some questions which would help shed some light on the matter

 

What date did he resign

 

Did he raise a grievance either before (or even after) resigning.

 

Did the employer start disciplinary or dismissal procedures

[michellecorlett2005]

He resigned in July 2007

The grievance was raised in Feb/Mar 2007

His employer started disciplinary procedure against him in May 2007

No action taken re his complaint of bullying/harrassment

[inline66]

Unfortunetley it would appear that both the three month (and the extension to six month) period have expired.

 

It would appear that you had up to Dec 07 (or at best Jan 08 depending on the day of resignation) to make a claim for constructive dismissal as you had an oustanding grievance procudere at the expiry of the normal three month period.

 

I think the only other opportunity would be via the civil courts where I am given to understand that there are different time limits. But you would need to check it.

[michellecorlett2005]

thanks, I didn't know that the extension was only up to six months, we are now looking at the civil court route anyway, but before that have spoken to Information Commisioner and the company do have to keep records and are bound by the same rules as everyone else. So have sent that off today, wait and see what response we get.

Fingers crossed, hopefully there will be some way even is via Harassment Act.

cheers All

Michelle

[Allwood]

Does a employer have to provide all documents that they hold on you manually and what is on their PC regarding employment issues. i need to know why they have stopped my SSP as well as a copy of the OHA letter I have asked for this on the phone several times as well as writing to no avail. I think I will have to go down the SAR route to get the information.

[inline66]

If the OHA letter is in fact a occupational health report produced by a medical doctor registered with the GMC then you can ask the doctor to provide a copy of the report.

 

GMC guidance document titled "Confidentiality: Protecting and Providing Information" Item 17 states:

"Where doctors have contractual obligations to third parties, such as companies or organisations, they must obtain patients’ consent before undertaking any examination or writing a report for that organisation. Before seeking consent they must explain the purpose of the examination or report and the scope of the disclosure. Doctors should offer to show patients the report, or give them copies, whether or not this is required by law."

[Allwood]

Many thanks inline66 but how can I find out if he is registered with GMC, do OHA have to be registered with GMC. :-|

[inline66]

It depends if he is a medical doctor and registered

 

See GMC register link below.

 

GMC | List of Registered Medical Practitioners#

[michellecorlett2005]

Anyway, update on this is SAR sent to ex employer, just hope it starts them wondering what the f**k is going on and at least makes the HR manager sweat a bit.

 

If there are any legal eagles out there who are willing to look at this case it would be great if they could get in touch via a private message, i think our out of touch local solicitors are interested in nothing more than making a fast buck from deaths and house sales and aren't really interested in getting their teeth into solving a bigger issue.

look forward to hearing and will keep all updated on the progress of SAR once communication received

Michelle

[Guest weegirl]

Unfortunetley it would appear that both the three month (and the extension to six month) period have expired.

 

It would appear that you had up to Dec 07 (or at best Jan 08 depending on the day of resignation) to make a claim for constructive dismissal as you had an oustanding grievance procudere at the expiry of the normal three month period.

 

You have 3 months only from the resignation date for constructive dismissal claims as once he resigns, he did not have to wait for a decision on a grievance in this instance as he is no longer an employee and is not bound by the internal procedures of the company the same as someone who has been sacked and is appealing, therefore the claim should have been lodged in September 07. The current grievance procedures are being abolished next year anyway as they have been a disaster.

 

Sometimes when an employee is sacked following serious discrimination of a religious/sexual/disability nature, the ET will allow an extension to the 3 month period "in the interests of justice", but this does not apply to constructive dismissal or unfair dismissal. Even then, you have to have prove to have a very good reason as to why you need the extension, for example, you were hospitalised. I found one case held 10 months ago that was allowed after employees were sacked following religious discrimination, they appealed but the decision was upheld. They believed that the 3 month period started from the date on the letter from the employer informing them of the appeal decision, but it was in fact the date of the original deicison. One of the claimants was able to argue that he was ill for the last fews weeks of this time period as well and the claim was only about 2/3 weeks out of time, but the tribunal still did not let the unfair dismissal part of it go ahead.

 

There is no set period for this time frame, the tribunal has discretion but the time frame has to be 'reasonable' and the burden of proof is on the claimant. I doubt very much they would see anything outside of a few weeks as reasonable and certainly not six months unless the claimant was in a coma or something

 

You could try civil claims but these tend to be very costly. Unfortunately these sorts of claims are really suited for the rich who have tens of thousands to spare. The ET system can be very unfair, and has let down a lot of people that have been geniunely hard done by. I have heard stories like this time and time again, unfortunately they are all too common.

[cal37]

You have 3 months only from the resignation date for constructive dismissal claims as once he resigns, he did not have to wait for a decision on a grievance in this instance as he is no longer an employee and is not bound by the internal procedures of the company the same as someone who has been sacked and is appealing, therefore the claim should have been lodged in September 07. The current grievance procedures are being abolished next year anyway as they have been a disaster.

 

Sometimes when an employee is sacked following serious discrimination of a religious/sexual/disability nature, the ET will allow an extension to the 3 month period "in the interests of justice", but this does not apply to constructive dismissal or unfair dismissal. Even then, you have to have prove to have a very good reason as to why you need the extension, for example, you were hospitalised. I found one case held 10 months ago that was allowed after employees were sacked following religious discrimination, they appealed but the decision was upheld. They believed that the 3 month period started from the date on the letter from the employer informing them of the appeal decision, but it was in fact the date of the original deicison. One of the claimants was able to argue that he was ill for the last fews weeks of this time period as well and the claim was only about 2/3 weeks out of time, but the tribunal still did not let the unfair dismissal part of it go ahead.

 

There is no set period for this time frame, the tribunal has discretion but the time frame has to be 'reasonable' and the burden of proof is on the claimant. I doubt very much they would see anything outside of a few weeks as reasonable and certainly not six months unless the claimant was in a coma or something

 

You could try civil claims but these tend to be very costly. Unfortunately these sorts of claims are really suited for the rich who have tens of thousands to spare. The ET system can be very unfair, and has let down a lot of people that have been geniunely hard done by. I have heard stories like this time and time again, unfortunately they are all too common.

 

 

Well stated post but where have you heard the high lighted? I pointed this out to the guys in the office and its the first any of us have heard of it.

[Guest weegirl]

Found this on Welcome to Employment Law Expert

 

"Just as employers, employees, tribunals and the legal profession have got to grips with these statutory procedures, the government has announced its intention to abolish them and replace the mandatory procedures with '… an alternative mechanism to encourage compliance with a relevant statutory code on disciplinary, dismissal and grievance procedures… Under Part IV, chapter 3 of the Trade Union and Labour Relations (Consolidation) Act 1992 in that the Secretary of State and ACAS may issue Codes of Practice subject to Parliamentary approval ('the statutory codes'). Section 207 of the Trade Union and Labour Relations (Consolidation) Act 1992 provides that a statutory code, although not legally binding, is admissible in evidence and can be taken into account by the employment tribunal:' per the introduction of an Employment Bill in the House of Lords by Lord Jones of Birmingham on behalf of the government on 06th December 2007. "

 

Going through some grievance stuff in work with an employee, our company solicitor confirmed it, I think it's still relatively new news. Apparently things will be changing around May of next year.

[inline66]

Weegirl I was wondering what lead you to the conclusion that

 

1. In the case of a constructive dismissal there can be no extenion in time in bringing a claim to the ET from the normal 3 month period to a 6 month period

 

2. In the case of serious discrimination that an ET will extend the time limit by 3 months

[Guest weegirl]

I didn't state that the tribunal will extend discrimination claims by 3 months, but that the tribunal has the discretion to add an extension to the 3 month limit if they deem that it was not reasonably practicable for the claimant to have the claim in on time, ie serious illness etc. and the case should be brought in the interests of justice, ie it is deemed as serious enough to be heard.

 

Constructive dismissal claims are not subject to the internal greviance procedures of the company they are suing, therefore they have 3 months from the effective date of resignation to claim.

[inline66]

I do now understand your first point and for the most part agree. However, this point has nothing to do with my original email

 

With regard to your second point I was rather hoping you would explain your reasoning rather than simply re-stating your point. I was looking for satute, case law or authoritative sources.

 

I am not sure why your are referring to the internal grievance procedures. In my original post I was refering to the statutory grievance procedures.