Sexual Harrassment/Breach of DPA

[Vindicated]

Hi there folks,

 

Ive a query, its quite long winded and im unsure who to turn to or what to do.

 

Basically about 2 years ago i was dismissed from my employer due to grounds of "Ill Health" I suffer from severe depression and anxiety and have been unable to work for around 4 years; it started after i moved facilites within the company i dont want to disclose which but i'll go into more detail.

 

I moved to new business area, i enjoyed the job very much and it was great; however things gradually seemed to go downhill in terms of the higher managements view towards me; im homosexual and it was most definitely apparent that there was a level of homophobia in the management team and that my sexual orientation didnt go down well.

 

Dont get me wrong, i was in no way flamboyant etc whilst at work, i remained very professional; however clearly this wasnt enough. As time went on I broke up with a long term partner which obviously was quite emotional, i got no form of help etc with these issues and was expected to get on with work, but no leighway was given for a slight work deterioration in terms of time it took to do some work i had, im not talking about weeks and weeks longer but just a few hours or a day at most for a little time.

 

This obviously got to me and i went to my doctor who signed me off work with Depression. It is at this point things started to get even worse with the management team at work. I saw my doctor every two weeks roughly and obviously sent in my sick notes accordingly; i admit i maybe was a day late once or twice in between periods of one sick note to another however i always emailed to advise.

 

The company were VERY VERY pushy with me in terms of coming in for an "Informal" meeting etc; however my condition was so bad that I couldnt go to any meetings, i even had my doctor send them a letter detailing this and why in terms of my illness etc. Regardless of that they still hounded me, making my illness even worse, so much so i turned to alcohol, it involved going out with some friends, but getting so blind drunk i could barely stand etc, so as you may understand the illness was somewhat "blocked" at that time due to the copius amounts of alcohol id consume in a night. They then came to me and said "Oh we saw you had been out with friends, surely you must be fine and can work" obviously this was not the case, however they just ignored that fact and proceeded to enter disciplinary action against me, this ultimately led to being dismissed on grounds of ill health.

 

Their hounding and homophobic attitudes worsened my illness and now 4 years on or so im in this situation where they literally have ruined my life completely. Also a few weeks after it was "Formally" stated i was dismissed it came to my attention (through some employee coming to me) stating they had released information on my illness, what medication i was on, apparently the managers stating they hated me and thought i was a gay f**k etc etc...this gentleman threatened me with murder and sent violent messages to me via an online site; "Im going to slit your throat and stand in your pool of blood whilst you turn blue" was just one of those many messages.

 

Again this made me worse but i had the courage to raise a complaint with my company, it was done formally; but in the end they stated they had no liability and that they were going to do nothing about it.

 

Ive struggled with my illness and i struggle in social atmospheres and in public in general, i see my doctor at least monthly and i also see a Occupational Therapy nurse on a regular basis but nothing seems to be working so far. As i said earlier, the companies actions have ruined my life completely.

 

Im posting here as i dont know what to do or who to turn too; some friends have said i should take the company to court for sexual harassment (sexual orientation discrimination) and breach of the DPA; i cant exactly afford a lawyer but as stated i have quite a bit of evidence and some union reps have said i do look to have quite a case with a strong possibility of success; hence if i won i would obviously pay the lawyer say 20% of the total sum awarded; ive only started to look into it more now due to being "slightly" stronger in mind and also with the fact two recent similar cases have resulted in awards of around £16 million and £11 million respectively being made.

 

I just wondered if any of you had experience or advice and whether it seems i have a strong case and therefore what should i do next?

 

Btw im not "hunting" for money etc, this has genuinely ruined my life; i just want some form of acknoledgement or guilt so to speak on their part as this shouldnt of happened to me.

 

Your advice is gratefully received.

Edited June 2, 2009 by Vindicated
Correction

[Vindicated]

anyone able to help at all? Sorry to pester, its just quite urgent and has caused a lot of stress

[Vindicated]

bump - any help really appreciated folks

[car2403]

Hello Vindicated and welcome to CAG! You're in good company here, as there isn't much that our members haven't experienced. I don't have personal experience of the challenges you've been through here, but I'm sure some other members will be along to share experiences with you - this is a self help forum, though, so feel free to have a looky around while you're waiting...

 

I'm really sorry to hear of your tribulations with this company and the effect it has had on you. It's unbearable, in this day and age, that someone's sexuality is called in to question with regards to performance at work - I'm only saying that as I don't think this "Company" is the norm, as most employees don't give a rats ass as long as you perform to standard.

 

With regards the issue of dismissal, have you appealed the decision? Do you know if they followed the company policy on disciplinary? Did they share evidence that justifies the outcome?

 

I know you can't say much about the company, but knowing some details could help. For instance, if it's an international PLC, with thousands of employees, they would be expected to give reasonable levels of support during your absence - that level would be difficult if you worked for Joe Bloggs over the road on his fruit and veg stall, if you know what I mean.

 

From my limited understanding, I don't think this would go to Court - it's more likely to end up in an Employment Tribunal. There's more experienced members that me, so I can't say for certain, though.

 

Health wise, I can only hope that your Doctor is progressing that for you effectively. It sounds that way if you're getting emotional support/therapy - it always helps to talk! (I think CAG may be able to help you here too! )

 

What impact has this had on your personal finances? Have you reclaimed bank charges you've been given? Do you have any loans with PPI on them, etc? Only asking as I suffered some severe bouts of depression a few years back and I challenged all that negative energy in to fighting for my Consumer rights - and I won! It's amazing how a sudden shift in personal finances from "in debt" to "debt free" (well, almost... ) can have on your mental wellbeing. So much so, that I've had promotion and work and my long term relationship is now better than every after 7 years! (I'm also in a same sex relationship, so can somewhat empathise with some of your torment to an extent)

 

I know I'm not offering much in the way of practical help, here, but I just wanted to let you know you aren't alone in all of this - with over 200,000 CAG members, how could you be alone, ever?! (Whether you like it or not!)

[Vindicated]

Hi, Thanks for the reply

 

Ive been pursuing this through a lawyer, just waiting to hear from one in scotland, the ones ive dealt with were in England and obviously the law is slightly different.

 

One lawyer stated as it has been around 2 years since i was dismissed its likely to be too late to go through the Employment Tribunal Service, I checked their site and it said cases can be brought forward on "Exceptional" circumstances only but it is not guaranteed. The reason i waited so long was basically the fact i was almost a recluse and had no confidence, self esteem to get out of bed, let alone a court/tribunal case.

 

The company is a big PLC bank. As i said, they've completely ruined my life, im only just coming to terms with it...to give an insight, it has been so bad that i repressed most of the issues that were happening with management at the time etc..so barely anyone knows of the discrimination; I will be discussing it with my OT Nurse when i see her 2moz. But i know this will probably go against me the fact that i said nothing apart from to my mum and in a court of law a parent is deemed biased :S

 

Financially ive lost 2 years of salary...and the future is bleak at the moment and its unlikely i could return to work anytime soon, so almost indefinate loss of salary; i also had to be made bankrupt as i couldnt afford credit commitments (one 26K loan which i believe was irresponsible lending by them as they kept increasing small loans til it ended up at that size, didnt withdraw credit cards etc); not to mention the mental damage this has caused, some of which may even be irreparable.

 

With regards to the dismissal there was at least two points they did not follow :

 

1. Whether your employer looked at alternative jobs you could do in their organisation

 

2.What exactly the medical evidence said and whether your employer has attempted to obtain up to date medical evidence

 

Point one; at one point early on i was getting slightly better and told my doctor that i possibly could work in a different role within the company; he stated this to them on a sick note, the company said "he never said it was because of work he was off etc etc" Well, i didnt say much as i had repressed the issues of sexual orientation discrimination etc even though, they didnt make any effort to source a suitable role for me, they just kept hounding me for meetings etc which in turn made my condition worse.

 

Point 2; I stated they were free to go to my doctor for medical info etc, i even got my doctor to send them a letter, they didnt bother doing anything and probably ignored the letter received; they did once mention we need you to sign a form at a meeting to get info from your doc, i stated im too ill to attend a meeting, send me the form and i will sign it, again nothing came.

 

Right now im trying to channel the negative energy into this and i really really hope my case is successful, and with the compensation payments in the millions for similar cases this would be just the boost i need to get my life back on track and forget these complete ba*****s sorry for the swearing there but if only you could feel what ive been put through this past two years.

 

 

For progressing my case i need to look at resolution options, obviously as lawyers say..the best resolution is £ signs at this time; I don’t know where to start with respect to that; some say it should be my salary times the years dismissed plus a certain time frame for future loss of earnings plus punitive amount of a set per cent of their profits the year i was dismissed; their pre-tax profits for 2007 were over £5billion. Even 1% of that figure is a huge amount, is this something my lawyer would discuss with me; or if i go to an ET do i have to come to the figure myself and provide details of how i came to that figure?

[Vindicated]

As im way past the 3 months "time limit" should i just proceed straight to court or do you guys think i should still complete an Employment Tribunal form?? It does state it can consider late submissions in "exceptional" circumstances... would being too ill and not having the self esteem/confidence to get out of bed let alone complete a tribunal form/hearing be an "exceptional" circumstance?

[elche]

two recent similar cases have resulted in awards of around £16 million and £11 million respectively being made.

 

Hi Vindicated, glad you're feeling a bit better after what was clearly an unpleasant experience.

 

Could you point to case names / refs for the above please?

 

As far as any ET claim goes, you would be very unlikely that a claim would be accepted at this late stage. It is established law that even where linking of acts can be established, a claim must be presented to an ET within 3 months of the last act complained of Hendricks v Metropolitan Police Comr [2002]

As regards an extension of time in ET, the onus is clearly upon the Claimant to show that such extension would be 'just and equitable in all the circumstances'. In my opinion you would have a considerably less than 50% chance of arguing such an extension should be permitted. That said, I suppose beyond time spent completing the ET1, you would have nothing to lose.

 

Thus you are left with some kind of claim in County Court etc bassed upon the law of negligence:

 

Liability for unlawful discrimination is not confined to the discriminator himself. An employer may be vicariously liable for discrimination by his employees; and a principal for discrimination by his agent. Where an allegation is made against an employee, there are special statutory rules to be considered. An employee for whose acts the employer is made liable under s 41 is deemed to aid the doing of the act by his employer. There is still, however, a requirement that the aiding is done 'knowingly' and it would seem (Hallam v Avery [2000] ICR 583, CA (upheld [2001] UKHL 15)) this means that 'the secondary party knows that the party from whom his liability is alleged to derive is treating, or is about to treat, or is contemplating treating someone “less favourably” on racial [or sexual] grounds' (per Judge LJ at 592A). In the absence of such mens rea the employee will not become liable under section 42 (or section 33(1) RRA).

 

The employer faced with vicarious liability is not without defence—he may defeat that liability by showing, in terms of SDA s 41(3), that he has taken reasonable steps to prevent discrimination. But here the burden of proof is on him.

Now I cannot find precise confirmation of this right now, but I assume that as this is a remedy bassed in the law of negligence, the time limit for bringing a claim woudl be 3 years from the date it caused injury or the date of knowledge.

 

You need expert help to bring such a claim and should contact a local solicitor.

 

Good luck

 

Che

 

NB I'm am not suggesting this is the only claim - but it is the only claim I could see right now!

[Vindicated]

Ok, thanks for your input. I have posted a letter im about to send to the company involved...after some consideration i've decided to go down the avenue of a breach of the Data Protection Act; mainly because in terms of sexual harrassment based on my sexual orientation i did not bring this up in my original grievance with the company for fear of persecution etc so the only person i told was my mum, and now my occupational therapist.

 

Do you disagree with that, and if so should i also include the sexual harrassment detail even although i didnt express it within my original grievance? Also, in terms of evidence in that respect its only really my word against theirs apart from input from my mum and occupational therapist who i disclosed this info too.

 

Here is the letter im about to send :

 

 

Sexual Discrimination & Breach of Data Protection Act 1998

 

 

 

Crime Reference : XXXXXX

 

Dear Sir/Madam;

I refer to our previous correspondance with regard to a complaint I raised with XEmployer in late 2007 where I believe sensitive information regarding my long term illness was released to a third party outwith the business area I worked in.

 

In essence I stated that Mr B an employee with the XEmployer (different business area) at the time made offensive and threatening comments to me on the (DATE HERE) when I was socialising with some friends. The content of these comments were based upon my long term absence from XEmployer due to severe depression with detail on the medication I was on and that the information was given out to several members within the office; These comments from Mr B escalated further when I received some messages via a website stating he was going to “Slit my Throat”, “Stand in my puddle of blood whilst I turn blue” and that “Id rot in hell with no anti-depressants to help”.

 

This information regarding my illness could only have come from one of three areas; Human Resources, Mr X who was my Line Manager or Mr Y the Associate Director of my business area.

 

Under section 5.4 of Health, Wellbeing and Attendance guidelines it states that Line Managers are responsible for maintaining all sickness absence related documentation and ensuring that this information is stored appropriately within the business area to maintain colleague confidentiality/privacy in line with the data protection requirements.

 

I have detailed the provisions of the Data Protection Act 1998 which you have breached on the next page along with details on liability and compensation;

 

 

 

 

 

Unlawful obtaining etc. of personal data (Section 55)

(1) A person must not knowingly or recklessly, without the consent of the data controller—

(a)obtain or disclose personal data or the information contained in personal data, or

(b) procure the disclosure to another person of the information contained in personal data

 

· A person who contravenes subsection (1) is guilty of an offence.

 

Liability of directors etc

 

(1) Where an offence under this Act has been committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of any director, manager, secretary or similar officer of the body corporate or any person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and be liable to be proceeded against and punished accordingly.

 

Compensation for failure to comply with certain requirements

(1) An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage.

(2) An individual who suffers distress by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that distress if—

(a) the individual also suffers damage by reason of the contravention, or

(b) the contravention relates to the processing of personal data for the special purposes

 

It is clear that you and your employees ignored the policy and the Data Protection Act by releasing this information, it resulted in causing my illness to become extremely severe due to being threatened with murder and it brought to light discrimination by line management based on my sexual orientation.

 

Please take note that unless I hear from you within the next 14 days with your proposals to settle this matter, I shall be issuing proceedings against you in the county court for breach of section 55 of the Data Protection Act 1998 together with a claim for damages and distress under section 13 of the Data Protection Act 1998 plus costs.

 

 

 

 

Ooops forgot to mention the cases i was referring too : one was Ms Claire Bright V HBOS & Ms Mona Awad V HBOS

Edited June 2, 2009 by Vindicated
Removal of Confidential Info

[elche]

I'm afraid I don't know a great deal about remedies for breach of DPA. Employment law seldom takes me much further than SAR requests and Data Protection Policies.

 

Have you spoken to the ICO?

 

As regards any negligence claims the fact that you did not mention this in the grievance letter, will go more to evidential credibility I think - i.e. if you can bring the claim at all (of which I am not sure), then it would not, of and by itself, destroy the chances of success.

 

Che

[Vindicated]

As regards any negligence claims the fact that you did not mention this in the grievance letter, will go more to evidential credibility I think - i.e. if you can bring the claim at all (of which I am not sure), then it would not, of and by itself, destroy the chances of success.

 

So if i understand correctly, i should now detail the extent of the sexual orientation discrimination even though i personally have no witnesses and only have my mum and OT nurse to back me up as i divulged that information to them?

 

Should i detail "Negligence" on their part or just straight forward sexual discrimination & deliberate release of sensitive information which resulted in my illness worsening and being threatened with murder etc (The discrimination side was also confirmed by the attacker stating my line manager and director called me a gay cu*t and referred to me as "The Gay one")

 

Is that sufficient evidence to bring to the case? I did have one witness with me who heard everything the guy said with regards to my employer.

[Vindicated]

Ok, LBA is away, waiting on there response before issuing Court Papers.

 

Just a question, can someone help me with what exactly i put on the Particulars of Claim and whether i include details of witnesses or evidence with the actual papers that go to the court in the first instance?

[Vindicated]

Hi guys,

 

Things have gotten a little worse in terms of my mental health and being able to proceed, the court papers should of been filed a few days ago but ive struggled to put together my PoC. Could someone help me with that at all in terms of what to write etc, I did get a letter from HBOS solicitor saying they will vigorously defend any claim and seek me to pay their legal costs (stressing a lot at this as i cant afford that) Is that a standard tactic to try and deter people from carrying their case forward?

 

 

Alcohol has become a big "crutch" for my stress yet again, but im panicking because im going out and just getting blind drunk, what if they see me etc?! Wont they argue if it was so bad i wouldnt go out full stop?! :S

 

Really stuck with PoC, do i just include all evidence(state what i have ofcourse) or not, also how do i construct it properly :S

 

Also, do i send the court papers to my local court or directly to HBOS?

 

ANY help would be amazing.

 

Thanks

[Vindicated]

bump

 

Shamelessly bumping as in dire need of some help If anyone has links to a well constructed PoC or any advice its more than welcome

[Vindicated]

bump

 

Shamelessly bumping as in dire need of some help If anyone has links to a well constructed PoC or any advice its more than welcome

[natalie]

I've flagged this to admin so you should get some help soon

[citizenB]

Hi guys,

 

Things have gotten a little worse in terms of my mental health and being able to proceed, the court papers should of been filed a few days ago but ive struggled to put together my PoC. Could someone help me with that at all in terms of what to write etc, I did get a letter from HBOS solicitor saying they will vigorously defend any claim and seek me to pay their legal costs (stressing a lot at this as i cant afford that) Is that a standard tactic to try and deter people from carrying their case forward?

 

 

Alcohol has become a big "crutch" for my stress yet again, but im panicking because im going out and just getting blind drunk, what if they see me etc?! Wont they argue if it was so bad i wouldnt go out full stop?! :S

 

Really stuck with PoC, do i just include all evidence(state what i have ofcourse) or not, also how do i construct it properly :S

 

Also, do i send the court papers to my local court or directly to HBOS?

 

ANY help would be amazing.

 

Thanks

 

I am sorry, I am unable to give any constructive advice. Just giving your thread a little nudge. Site team are aware

[flipper79]

Hi there, unfortunately I can't help with the employment side of things although I do wish you the very best of luck.

 

I have, however, suffered with what sounds like similar mental issues so you do have my utmost sympathy. I'm sure given the length of time you've suffered most things have been discussed with you in regards of treatment...but at the same time it doesn't hurt to check.

 

Is it a GP you're seeing or have you been referred to someone with more experience with mental health?

 

Is the doctor aware of the issues you're having with alcohol? I was in the same situation...scared of social situations for fear that I would draw attention to myself by doing something stupid; drink to counteract this fear; then because of the drink, live up to the fear; wake up the next morning even more depressed thinking about the things I'd done the night before. It's a horrible cycle to be in, and in my case was the first thing that needed to be sorted. Getting help from an alcohol support group might help you. It doesn't mean you're an alcoholic, but since your circumstances are one of the primary reasons people do become dependant, they will have alot of experience and knowledge of ways to help you get out of this cycle.

 

Has the doctor looked at alternative therapy methods? It may not be for you, but I found cognitive therapy a great help...training your mind to reassess how both yourself and other people percieve you.

[caro]

I'm afraid I can't help with your POC, but I have suffered bullying at work and also depression. One area of negligence I wondered about is whether the people involved had received training in equality and diversity.

 

I just googled and found this, rather old I know

 

http://www.bankofscotlandbusiness.co.uk/womeninbusiness/pdfs/equality.pdf

 

Also this:

 

HBOS Careers - Diversity

 

In this day and age there is no excuse for discrimination of this kind.

 

Had you thought about contacting the Equal and Human Rights Commission to see if they might be able to offer any advice?

 

EHRC - Advice from our Helpline

[Vindicated]

Thanks for the input guys; typing up PoC as we speak...gonna pop some of that in there too Caro, v handy...now just gotta figure out how to place it in the right bit lol; will keep you updated, fingers crossed i win my case guys

[Vindicated]

Ok, got a response from the court stating under scots law i must bring my claim using a writ or something along those lines.

 

However after briefly speaking to a solicitor, he stated i should give the employment tribunal a go even although its way past the time limits for them to deal with a case (the incident took place around two years ago)

 

Amazingly, the tribunal came back to me and said that they will hear my case...firstly, do you guys think this is a positive sign? Does this mean the tribunal believe that my case is fairly strong?

 

I was considering representing myself but im absolutely terrified and not entirely sure (given the type of case) whether i can remain neutral...would this affect the chance of success for my case?

 

Do you recommend i obtain legal representation? If i do get that, will their costs be met by the other side or do i have to meet them myself if i win? If i must meet them myself...should i include this within my value of claim details aswell?

 

If anyone can provide some support or advice that would be great...so far 6 days into the respondants time frame to respond (28 days) and they still havent replied.

 

Thanks in advance

[Vindicated]

Guys,

 

Ive just received a letter from the tribunal with the banks response on it, and they are trying to make the tribunal ignore my evidence as apparently i did not attach/include it on the form i filled out online to bring my case to them.

 

I have seven days to respond and panicking so much now..what do i write back..The Judge said he would like my comments on their letter they sent...so does this mean i just give him reason why i didnt attach the forms to begin with (It said online not to attach other documents etc) what else should i do?

 

Does this sort of response mean the bank are actually a little scared and feel this could be too much evidence against them (Death threats from an employee due to the company releasing personal info)

 

Please please help guys, im completely stressing out

[caro]

Please try not to worry. It's inevitable that the bank will try and fight their corner, so just do as the tribunal have asked, and respond to the comments.

 

Have you been sent any information about what to expect from the tribunal? If you need clarification there's contact info linked here which may be useful. Employment Tribunal > About us

[Vindicated]

Thanks for your input Caro, I have read over that link, sent my response. But just recently received word that the bank are trying to get my case "Time-barred"

 

Im aware i was outwith the time limits for bringing my case, but the reason was that i was too ill with the depression and anxiety to go forward with such a huge case at that time, the bank are arguing the fact that i raised a grievance therefore should of been able to raise my case against them then,

 

But in all honesty, their poxy grievance was nothing compared to the amount of things ive to do for the Employment Tribunal, therefore at the time of doing it within the three month period, i think i would of committed suicide with the added stress.

 

Im going to get a letter from my GP stating that it was not practicable for me to bring the case withing the alotted three months, but is there anything else i can do to ensure the Judge doesnt "time-bar" my case??

Edited August 18, 2009 by Vindicated

[Vindicated]

any help appreciated guys

[Vindicated]

Time Bar hearing later this month.

 

I've got letter from my GP, and my own statement; Anyone know if this will be enough?

 

Trying to get a letter from a Psychiatrist i spoke with; but she has'nt replied to my email

 

Anyone know if I should get some other form of evidence?

 

Please help, completely stressed out with all this