Ex Employer disclosing information about me - is this allowed?

[Samca]

Hi

 

A bit of a tricky one, I wonder if anyone can help me with it please.

 

My Brother had a messy termination of his old employment. He went through the rig marole of disciplinary procedures etc etc, right through to an appeal. We totally disagree with what they said and done but hey what can be done about it, he never had the money to go to Court and didnt really want the stress anyway and has since found new employment.

 

His ex employers are very unprofessional and simply sack people when they have had enough of them. My Brother didnt give in without a fight and they were not happy with him for that, they made it quite clear that the disciplinary process was just an inconvenience and their decisions were made before any hearings were heard!

 

Anyhow, he has ongoing a claim for compensation following a car crash. He signed an authority for his ex employers to release his earnings information to his solicitors in order that they could calculate his loss of earnings.

 

His ex employers released his wage information to his Solicitors but then went onto telephone the insurance company and inform them that he was sacked! (one of the reasons he was sacked was due to his time off following the accident) He was in the process of requesting an interim payment to cover the mortgage payments he missed whilst he was on the sick and only on SSP.

 

Surely it is not right for an ex employer to telephone a Defendant and disclose any information at all without consent was it? The authority signed, was authorising the employer to release information to the Solicitors.

 

Would be great if anyone could shed any light on this as these people keep cropping up and causing nuisances for him.

 

Thanks a lot x

[yourbank]

Hi

 

A bit of a tricky one, I wonder if anyone can help me with it please.

 

My Brother had a messy termination of his old employment. He went through the rig marole of disciplinary procedures etc etc, right through to an appeal. We totally disagree with what they said and done but hey what can be done about it, he never had the money to go to Court and didnt really want the stress anyway and has since found new employment.

 

His ex employers are very unprofessional and simply sack people when they have had enough of them. My Brother didnt give in without a fight and they were not happy with him for that, they made it quite clear that the disciplinary process was just an inconvenience and their decisions were made before any hearings were heard!

 

Anyhow, he has ongoing a claim for compensation following a car crash. He signed an authority for his ex employers to release his earnings information to his solicitors in order that they could calculate his loss of earnings.

 

His ex employers released his wage information to his Solicitors but then went onto telephone the insurance company and inform them that he was sacked! (one of the reasons he was sacked was due to his time off following the accident) He was in the process of requesting an interim payment to cover the mortgage payments he missed whilst he was on the sick and only on SSP.

Have you got proof of this and what information was given?

Surely it is not right for an ex employer to telephone a Defendant and disclose any information at all without consent was it? The authority signed, was authorising the employer to release information to the Solicitors.

 

Would be great if anyone could shed any light on this as these people keep cropping up and causing nuisances for him.

 

Thanks a lot x

 

Can you clarify the above in red?

[Samca]

the insurance company requested his earnings details so that his loss of earnings to be calculated. he signed an authority authorising his ex employers to release wage information to his SOLICITORS. This was received by his Solicitor and forwarded onto the insurance company.

 

His Solicitors rang the insurance company to chase the interim payment and the insurance company advised that they were not willing to consider an interim payment as his ex employer had informed them by telephone that he was sacked.

 

He has all the written documentation following the disciplinary procedure, one of the reasons for dismissal was due to the time taken from work. He also has proof that despite the accident being in July he was not dismissed until the following October.

 

I hope this is the information you were after.

 

Thanks

[yourbank]

the insurance company requested his earnings details so that his loss of earnings to be calculated. he signed an authority authorising his ex employers to release wage information to his SOLICITORS. This was received by his Solicitor and forwarded onto the insurance company.

 

His Solicitors rang the insurance company to chase the interim payment and the insurance company advised that they were not willing to consider an interim payment as his ex employer had informed them by telephone that he was sacked.

 

He has all the written documentation following the disciplinary procedure, one of the reasons for dismissal was due to the time taken from work. He also has proof that despite the accident being in July he was not dismissed until the following October.

 

I hope this is the information you were after.

 

Thanks

 

Is the terms of the insurance employment related, ie if you're sacked you don't get paid out?

[Samca]

Is the terms of the insurance employment related, ie if you're sacked you don't get paid out?

 

 

I am a little unsure of exactly what you mean by this question.

 

 

The Insurance Company are the Defendant in a personal injury claim following a car accident.

 

 

He received SSP from his employer whilst on the sick following the accident. (as is normal practice)

 

 

He is attempting to recover the shortfall between his SSP and his salary from the Defendant for the period he was on the sick. (between the period of July to October)

 

 

His ex employers told the Defendant he was sacked shortly after the accident and wouldnt have been working anyway, therefore not entitled to any loss of earnings. (this was done purely out of spite because he inconvenienced them by going through the entire disciplinary proceedure)

 

Firstly this is untrue, he wasnt sacked until three months after the accident

 

secondly one of the reasons he was sacked was as a result of time off work. We can provide information to prove this.

 

 

My main query here is, is it ok for his ex employer to disclose this information to a Defendant in a claim he has which is totally unrelated to them? if not, what can be done.

 

Thanks

[patdavies]

My main query here is, is it ok for his ex employer to disclose this information to a Defendant in a claim he has which is totally unrelated to them? if not, what can be done.

 

Leaving aside for the moment that this may be malicious and mis-leading (as to dates, etc.) there is a general duty to pass on this sort information if fraud is suspected or to be prevented.

 

I don't doubt, from what you have posted here that this is malicious, but if such information was given in good faith, then it would be right to disclose it

[Samca]

Leaving aside for the moment that this may be malicious and mis-leading (as to dates, etc.) there is a general duty to pass on this sort information if fraud is suspected or to be prevented.

 

I don't doubt, from what you have posted here that this is malicious, but if such information was given in good faith, then it would be right to disclose it

 

 

I understand what your saying, but we cannot set aside malicious and misleading as this really is the case. If they felt under a duty to provide this information why did they not do this to his Solicitors who had provide a signed consent form, authorising them to release this information? They providing all the earnings information as requested.

 

 

From what I can gather, as the contract of employment is terminated the employer is not contracted to keep the information confidential. does anyone know if this is correct?

 

Also - would he not be covered by the data protection act?

[patdavies]

I understand what your saying, but we cannot set aside malicious and misleading as this really is the case. If they felt under a duty to provide this information why did they not do this to his Solicitors who had provide a signed consent form, authorising them to release this information? They providing all the earnings information as requested.

 

He has no obligation whatsoever to talk to your solicitor at all.

 

From what I can gather, as the contract of employment is terminated the employer is not contracted to keep the information confidential. does anyone know if this is correct?

This is nonsense, the legal duty to hold personal information properly is outside and above any contract - employment or otherwise

 

Also - would he not be covered by the data protection act?

Yes, but if doesn't believe that he is being malicious(!) then he is covered for passing the information by one of the statutory exemptions (I can't remember which section number off-hand. s.29?).

[Samca]

He has no obligation whatsoever to talk to your solicitor at all.

 

yeah i know that, but they had provided the earnings information to the Solicitors (which was all correct) - but then they went onto phone the Defendant and say they sacked him.

 

This is nonsense, the legal duty to hold personal information properly is outside and above any contract - employment or otherwise

 

thanks for that - i was little bothered by that one.

 

Yes, but if doesn't believe that he is being malicious(!) then he is covered for passing the information by one of the statutory exemptions (I can't remember which section number off-hand. s.29?).

 

i am certain that we have enough evidence to clarify that it was mallicious.

 

 

 

Are there any steps that we can take? Any body it can be reported to or anything?

[Samca]

i am certain that we have enough evidence to clarify that it was mallicious.

 

 

 

Are there any steps that we can take? Any body it can be reported to or anything?

 

 

 

 

ooops my answers are within your quoted bit, im not as good at it as you lol

[patdavies]

i am certain that we have enough evidence to clarify that it was mallicious.

 

You're missing the point.

 

It doesn't matter whether you can prove that it is malicious. What matters is his belief that he is acting in good faith

[Samca]

You're missing the point.

 

It doesn't matter whether you can prove that it is malicious. What matters is his belief that he is acting in good faith

 

 

no I disagree, I dont think any normal person is likely to believe that it was "his belief" that:

 

following a request from a firm of solicitors for earnings information, and after providing this information, he thought it would be correct to them track down the Defendant in a case, totally unrelated to him and inform them of his ex employees track record. Why didnt he just let the Solicitors know? I dont believe for a minute that he would stand a chance with that exemption.

 

Presumably then this would become civil matter for DJ to decide?

[Jason F]

First port of call can be to the Information Commission. He can proceed to issue a Part 8 (IIRC) which would be against the company who released his information without his consent - and the IC can take action as well.

 

I am still a bit confused as to how any defendant in a PI claim can state they are not paying out because he was sacked? Am I missing the point here?

[Samca]

First port of call can be to the Information Commission. He can proceed to issue a Part 8 (IIRC) which would be against the company who released his information without his consent - and the IC can take action as well.

 

I am still a bit confused as to how any defendant in a PI claim can state they are not paying out because he was sacked? Am I missing the point here?

 

 

your not missing the point, probably just misread it.

 

They are not refusing the pay out for the whole of the claim, just the loss of earnings.

 

Thank you so much for that information, I will look into it straight away.

[Jason F]

Oh I see.

 

They are therefore responding and stating that he has no loss of earnings because he was not employed at the material time, therefore he has no recoverable loss.

 

In which case, I believe your response ought to be along the lines that due to his injury he was prevented from seeking alternative employment and therefore you will ask the court to award on that basis...

 

Have you a list of the losses which you/he is/are claiming? There are little things like the prescription charges for painkillers (anything to do with his injury) and taxi fares or extra costs incurred as a result of the injury, hospital charges etc.. and these can fairly add up (as well as the interest on them of course).

[Samca]

Oh I see.

 

They are therefore responding and stating that he has no loss of earnings because he was not employed at the material time, therefore he has no recoverable loss.

 

In which case, I believe your response ought to be along the lines that due to his injury he was prevented from seeking alternative employment and therefore you will ask the court to award on that basis...

 

Have you a list of the losses which you/he is/are claiming? There are little things like the prescription charges for painkillers (anything to do with his injury) and taxi fares or extra costs incurred as a result of the injury, hospital charges etc.. and these can fairly add up (as well as the interest on them of course).

 

 

 

 

Yes the claim is all in order thank you.

 

The problem we had was that four months after the accident he was sacked (one of the reasons was due to time off). Earnings info was obtained - following the correct procedure) but the ex employers then went off their own back to contact the insurance company and tell them he was sacked and all the reasons why he was sacked and therefore is not entitled. (we know this because the insurance company have phoned his solicitor and told them)

 

Firstly this is incorrect as he was sacked four months after the accident and had returned to work by then so we are not claiming for losses longer than four months anyway.

 

Secondly I was unsure whether there was anything we could do about his ex employers disclosig this information without consent.

[Jason F]

Do you have some form of proof that he was sacked due to his time off? If so, that can increase your claim against the insured other party. Also, when he followed the appeal/grievance procedures against his former employers did they do anything un-toward?? (I note you say you believe they acted in this way out of spite because of his following the grievance procedure. It COULD be an arguable victimisation claim, I Don't know if you have considered that)..

 

And as I stated above, NO, his ex employer should not have disclosed that information, and I would certainly write to them asking for an explanation as to their behaviour (oh, did they in any way lie? You state an incorrect date, does your solicitor have a record of this?). Then inform the IC (don't notify the ex-employer about this, just in case the IC don't bother to take action).

 

You ex-employer still owes a duty of care not to be negligent and furthermore if they cause you to suffer a loss, you can recover it from them (for example that's why references are usually not terribly helpful and just state X was employed between Y and Z dates, to prevent them being sued!).

 

So hopefully that has helped a little at least.

[Samca]

Hi, thanks for your message.

 

We followed the correct disciplinary procedures and followed the matter right through to an appeal. Their stance remained the same throughout, despite obtaining witness evidence which they merely dismissed. A grievance was put in on the basis that he was victimised and treated unfairly. This was also dismissed. We felt the whole process to be unfair. The firm have reputation for simply "getting rid of staff when they have had enough of them" and as my brother followed the correct channels this was a huge inconvenience for them. The whole process dragged on for some months and after the accident and his wife having a baby I thought it was unfair of me to pursuade him to continue when he simply wasnt getting anywhere with the case but being put through a lot of strain so we just let sleeping dogs lie.

 

Oh I didnt mention he was actually still on the sick as a result of the accident when he was sacked and had been for about 4 weeks. (he initially had a week off, then went back for a few days, then off and then back - the main injury is a wrist injury when his arm went throught he window so it would worsen with work)

 

However it was when his Solicitors requested the earnings information that they decided to "take their revenge" i guess.

 

His Solicitors have been handed the disciplinary letter confirming the reasons for dismissal now however the damage has been done and an interim payment will not be forthcoming to help pay the arrears on the mortgage from when he was on the sick following the accident.

 

 

Any tips on what we should be saying to his ex employers when writing to ask them why they disclosed it?

 

Cheers

 

 

Oh and I think were out of time now to do anything about unfair or contructive dismissal now I believe? he was dismissed in October 2008 and the appeal was carried on in November 2008??

[Jason F]

First thing I would do is write to them and ask them upon what basis they acted when disclosing this information.

 

Yes, 3 months is the time required. Unless there is a good reason to extend time... If it transpired for example that his injury prevented him from undertaking this claim, and his injury COULD reasonably be a possible disability, then he could argue that the reason for his late claim is his disability.................

 

If you are looking at ways to get them, was his injury an accident at work?

[Samca]

First thing I would do is write to them and ask them upon what basis they acted when disclosing this information.

 

Yes, 3 months is the time required. Unless there is a good reason to extend time... If it transpired for example that his injury prevented him from undertaking this claim, and his injury COULD reasonably be a possible disability, then he could argue that the reason for his late claim is his disability.................

 

If you are looking at ways to get them, was his injury an accident at work?

 

 

Hi

 

No it was an RTA. It was when he was having time off on sick that all the problems at work began.

 

However (just to complicate things lol) he has got an injury at work claim. He stood on a piece of wood on the works yard with a nail in it. The injury is very minimal and prospects pretty low so it looks like it solicitor is going to chuck it in, but to be honest we were expected that but Solicitor got it up and running as a favour really. Letter of claim was submitted to them about it and they eventually passed it onto their insurers who came back with the worst denial letter i have ever seen!! They have come up with every excuse possible to deny liability. But like I say, were not really that bothered about that, we didnt expect it to go anywhere anyway.

 

I agree, the injuries from the RTA could act as a disability, he had quite severe physical injuries (he put his arm up to save his face and his arm went through the window - the flat of his wrist first, it is this injury that he has been suffering with most and prevented him from working, although he did attempt to mitigate his losses and return to work but this just exasperated the injury). He has been referred to a psychologist following recommendation by the Orthopedic surgeon. He has been for an MRI scan and we are currently awaiting those results.

 

 

If we are out of time then, do we follow the usual channels through the employment tribunal? are there any solicitors about who deal with them no win no fee, or do you have to just do it yourself? Our firm dont do employment.

[Jason F]

Hi,

 

Sounds like a very nasty RTA. Hope he recovers soon.

 

The injury at work claim can always be dropped in exchange for some concession from his ex-employer at some stage in the future.

 

The only thing I can really think is, as I said above, you ask for an extension of time to submit your claim in light of his possible disability and the fact that his injuries have prevented him from doing so.... Solicitors don't tend to do No Win No Fee at ETs because the requirements for getting costs back are very limited. You COULD employ counsel on a direct access basis (also, if I haven't already said it, check your house insurance and car insurance as they may have legal expenses which might cover the claim). Other than that, it's issue the claim yourself (ET1) and state that you request an extension of time due to his disability and in the interests of justice, and you could point out that it is policy that discrimination claims are heard....

[Samca]

Thanks your a great help, i might keep you posted throughout for any further help if thats ok!

 

Yeah it was a nasty RTA, some fool doing about 70/80 down a country A road lost control and skidded sideways into my brother, brother watched him coming and despite mounting an embankment at the side of the road was unable to get completely out of the way! His lovely audi was written off and the his two year old son in the back. His wife was 8 months pregnant at the time and it just doesnt bear thinking about what would have happened had she been in the passenger seat (as after the crash there wasnt a passenger seat!!)

 

It all kind of went downhill for him from there, got mega grief from work for taking time off after the accident, had to use up his holidays when the baby was born but still they gave him grief, their so unprofessional it makes me mad! It really was the start of the end for them, wont bore you with the details but it ends in them currently filing for bankruptcy - all to nothing in less than a year, such a sad story! - Hey actually I wonder if you can help me with this lol - they are planning on filing for bankruptcy at the end of the month when they have enough money to do so but worried that if he continues with his PI claim that will just get taken away? Do you know anything about that type of thing?

 

cheers again, your ace!

[Jason F]

There is caselaw to suggest that discrimination claims should be heard, which I can give you if you want, if you are going to make an out of time application.

 

That does sound nasty, and he sounds like he was pretty lucky to survive it.

 

I am no expert on bankruptcy, but yes, I do THINK that in the event he acquires lots of extra money, it is possible for a debtee to seek to recover it. But they would first of all have to find out about it.. I would counsel against bankruptcy if at all possible though - have they tried the money expert debt type people etc and made offers to pay a nominal amount or even asked the mortgage company to go interest only etc.. Bankruptcy can really f**k things up (for want of a better way to put it) for a very long time indeed as I understand it.

 

Secondly, presumably his wife and child have also claimed for PI from the driver? (The child can have a "litigant friend" who is over 18, say for example your wife, pursue the claim on the baby's behalf). THEIR money could not be touched (unless they are joint debts !).

 

Yes, do keep us posted, hopefully someone else will have something better to advise you as well.

[Samca]

There is caselaw to suggest that discrimination claims should be heard, which I can give you if you want, if you are going to make an out of time application.

 

That does sound nasty, and he sounds like he was pretty lucky to survive it.

 

I am no expert on bankruptcy, but yes, I do THINK that in the event he acquires lots of extra money, it is possible for a debtee to seek to recover it. But they would first of all have to find out about it.. I would counsel against bankruptcy if at all possible though - have they tried the money expert debt type people etc and made offers to pay a nominal amount or even asked the mortgage company to go interest only etc.. Bankruptcy can really f**k things up (for want of a better way to put it) for a very long time indeed as I understand it.

 

Secondly, presumably his wife and child have also claimed for PI from the driver? (The child can have a "litigant friend" who is over 18, say for example your wife, pursue the claim on the baby's behalf). THEIR money could not be touched (unless they are joint debts !).

 

Yes, do keep us posted, hopefully someone else will have something better to advise you as well.

 

 

 

Hi cheers.

 

They are at the early stages of the bankruptcy thing. They managed to keep payments up with the importants (mortgage & counsel tax etc, albeit not fullpayments, just tokens) so no proceedings have been issued, however they are getting debt collections and bailiffs at the door for overdrafts and loans etc. They have decided that bankruptcy is the best option for them, they just wanna get rid of the stress and to be honest I think they need to get themselves sorted and back to square one! The mortgage they initially took out was far to high really.

 

Yeah there is a claim for the little boy (fortunately his wife wasnt in the car) that is just on hold at the moment as the expert gave a prognosis so we thought no harm in waiting out the period just to be sure!.

 

Might pin Counsel down at next conference for a bit of cheeky advice lol!

 

The caselaw would be great if you wouldnt mind sending it, am I allowed to give my email on here?

[Jason F]

Ah right, it is not easy under the circumstances. Can they not get DSS payments to assist with the mortgage etc? The problem is they won't be sorted, it can haunt them for the next five years or more, AND in some cases the bankruptcy does not mean the mortgage company can't come after them....

 

Yep, you can look up counsel on the Chambers website and see if they also act in Employment law, and then they can give you some help.. Oh, does your brother live in London ? (Slim chance, but FRU may take on his case if he does).

 

Annoyingly, I cannot find the s***ing case in my book now which just states there is a policy of allowing discrimination claims to be heard.. But it IS well known the courts, honest.....

The EOC website says

 

"

8.4 Making a claim outside the time limit

 

If you make a late application:

• the Tribunal may hold a pre-hearing review to decide whether to accept your late claim or they may decide this at the start of the full hearing or after they have heard the full case;
• by law the Tribunal can only accept your claim if it believes that it is just and equitable to do so;
• the Tribunal will ask you to explain why your application was late. You will need to have a good and genuine reason for the delay. It is often a good idea to explain the reason on the ET1 when sending in a late application;
  
• some reasons which may make it just and equitable to extend the time for having filed the ET1 are:
  
  • you were too ill to apply to a Tribunal (if so, you are advised to obtain a letter from your GP or consultant as evidence of your ill health);
    
  • you had no reason at the time to believe that you had been discriminated against but further information has since come to light.
    

If you do not file your claim in time because you did not know you had a legal right to make a claim or were given wrong advice you should send in your application as soon as you can, explaining why your claim is late. A Tribunal might exercise its discretion to allow your claim to proceed out of time but will not necessarily do so. If you were given wrong advice, you may have a separate negligence claim against your adviser.

How does the Tribunal decide on late claims?

 

In deciding whether to extend the time limit and allow a late claim to proceed, the Tribunal will look at all circumstances of your case and, in particular:

• the length of and reason for the delay;
• the extent to which the evidence is likely to be affected by the delay;
• the extent to which the Respondent has co-operated with any requests for information;
• the promptness with which you acted once you knew of the facts giving rise to the complaint;
  
• any steps you took to obtain appropriate professional advice once you knew (or could have found out) that you might have a claim"
  
• 
  

I will have another look for that case though, I have it in my head that the EAT or I actually think it was the CoA made a direct statement, I will check a legal search engine.