Company data protection breach ** SUCCESSFUL OUTCOME**

[Prouty99]

Hi All,

 

Just thought i would ask advice about my situation, but must tread carefully in my wording as this is an ongoing issue.

 

I worked for a major UK company, and after a series of bullying, and victimization incidents by the company, including their breach of contract, i finally complained using the terms of my employment rules through grievance procedure.

 

3 days after the informal stage, the company dismissed me on made up charges that have been refuted by multiple members of the company that have come forward to support me.

 

15 minutes after i was dismissed, and made to leave the building (after being refused representation), the MD sent a circular email to every member of the UK wide network telling them that i had been dismissed...It took me an hour to get home, so therefore the entire network new i had been dismissed before my own family

 

I have now been anonymously given a copy of this email, which shows the names of every person in the network that it was sent to, the time it was sent, and the message does indeed mention me by name.

 

i know there are many employment specialists on this forum, so here's the question..., how should i proceed ? Is the email more damning evidence than the non representation, or the victimization, or the breach of contract ?

[lbruk]

Hi,

 

well that sounds awful. Did the email mention you by name? I am guessing that it did.

 

There are a number of breaches in the information you have given. Unfair dismissal springs straight out at me. The ICO might be interested in the afct they used your name and all disciplinary information should be kept confidential unless you give your permission to release it.

 

With everything that has happened, I would suggest legal advice.

[Prouty99]

Problem is that i haven't even received a written notice stating what i have been charged with, so therefore cannot lodge an appeal until i have the charges in writing.

 

So the email went out even before an appeal was offered (which still hasn't happened yet)...If you are dismissed, are you technically dismissed, or are you still employed until the appeal has been heard ?

 

As well as this, i believe that the data protection act is a good set of regulations, but in reality has very little power to use as a big stick...,and even if it did the company may get fined but will it get my job back ?

[stu007]

Hi

 

You should have been informed verbally at the Disciplinary hearing of the decision and that a written copy would be sent to you within 7 days.

 

It does sound from what you have written that as Ibruk has pointed out their may be a number of breaches and the most important one to you at present is your right to appeal this decision.

 

For use to better advise you could you please try and give use a brief rundown of the lead up to your dismissal.

 

Also how long have you been employed by this company?

Edited June 9, 2012 by stu007

[Prouty99]

This is the crux of the issue.

 

Less than 12 months !

 

But breach of contract is a contract issue that doesn't necessarily need to go through tribunal channels.

 

Breach of section 10 (refusal to representation) can be viewed as victimisation on grounds of trade union membership (again, with recourse to equality act legislation, not needing employment tribunal)

 

The data protection act breach could be pursued through civil court as slander, or libel, or any number of channels rather than tribunal

 

If any of these incidents happened to a normal citizen in the street, the prosecution lawyers would be rubbing their hands, so why not apply the same principle to the employees who have less than 12 months service ?

[Prouty99]

Sorry for posting twice, but i just realised something else

 

If i started grievance procedure at stage 1 by using the informal approach, i was actually dismissed prior to stage 2, therefore i was dismissed during grievance procedure. Therefore the company has breached its own terms and conditions regarding grievance procedure (yet another breach of contract).

 

i always thought that a company had to let grievance procedure run its course (i.e the status quo applies during the procedure), and to dismiss during grievance could be seen as removing even the the most basic of employment rights

[stu007]

Hi

 

Irrespective of how long you were with the company you still had a right for them to follow Grievance and Disciplinary Policy and Procedures correctly.

 

Ok can see what your saying but you can plat these idiots at the same game and I cannot say it will get your job back in anyway.

 

Right they have failed to write to you and inform you of the dismissal in writing with the reasons for dismissal and your right to appeal.

 

So send them a short letter (always send recorded delivery and keep a paper trail)i.e.

 

Dear Sir/Madam

 

Further to the Disciplinary Hearing held on XX/XX/XX where I was notified of my dismissal from the company.

 

I now wish to Appeal this decision as to date I have had no written notification of the reasons for my dismissal by the company.

 

I now also require the following documentation:

 

1. Disciplinary & Grievance Policy and Procedure.

2. Equality Policy and Procedure.

3. Confidentiality Policy and Procedure.

4. Data Protection Policy and Procedure.

 

Now this is only a suggestion but you do still have the right of appeal.

[Prouty99]

Thanks for the letter, i will use it if it comes down to that, so much appreciated.

 

On the other hand, the standard 7 day period for appeal only starts from the minute that you get the written letter stating what you were dismissed for. If a letter isn't forthcoming then surely the company would dump itself in even bigger poo, as you were never legally given the right to appeal in the true sense of the process.

 

You can still lodge an appeal within a 'reasonable timeframe' even if that timeframe is outside of the 7 day window, and that 7 day window cannot start until you get the written letter confirming grounds for dismissal.

 

This could run, and run, although sending the letter you have provided, and still getting no response must result in some recourse to the law irrespective of your less than 12 month service rule.

[stu007]

Hi

 

Thats the point let them drop themselves in it so to speak then follow up requesting an appeal as they have failed to notify you of your right to appeal at the Disciplinary Hearing nor in written notification with the reasons for your dismissal.

 

Also regardless of what the contract says, the law gives all workers (not just employees) a right to be accompanied by a work colleague or trade union representative under section 10 of the Employment Relations Act 1999.

Edited June 9, 2012 by stu007

[Prouty99]

I agree, so at the end of the day there are many angles that someone could pursue without ever going to a tribunal if the circumstances are correct

 

What are your feelings on the email issue ? An angle i was contemplating was the fact that the company's business mainstay is the processing of private and confidential information of vulnerable groups. Maybe the fear of adverse publicity and future lost business through tarnished image would wake suddenly snap them into action.

 

The data commissioner issuing a warning that may never become public knowledge as it is in itself a data protected issue, and i would feel gutted if reporting it to the ICO resulted in a behind the scenes hand slap and that's an end to it (which i have seen happen in the past)

 

My privacy belongs to me, and i think a civil action leading to a court win, and therefore the case becoming public knowledge may be the only way to make a point.

 

On the other hand, i have been down the employment law route many times, i know how difficult it can be to justify court proceedings (and costs) when the defendants offer far more in an out of court settlement than you could ever hope to win by proceeding to court. By proceeding with the case under these circumstances it will more than likely be struck out as a vexatious claim as you would be seen as wasting court time and money. The problem is that by accepting the offer it is always tied to a COT 1, or COT 3 agreement (confidentiality), and if you take it, and sign the agreement, the circumstances of the case are then buried for all time, and nobody ever gets to hear them.

 

In my experience, money talks, and if the company has enough money it can bury anything using these tactics. If you stand to win £5000, and the company is offering £20,000 to settle, any lawyer will advise you to take it and sign the gagging order

[Prouty99]

Just to post an update of this case, i have been informed by the company involved (in writing), that their HR department doesn't have to allow any representation at disciplinary/grievance hearings.

 

?

 

Employee relations act section 10 doesn't apply to them apparently....

 

Bear in mind that the company outsources its HR affairs to a private so called professional HR firm who you would think know HR procedure backwards

 

I think they will get a rude awakening quite shortly when my own legal team see this letter

 

Thoughts anyone ?

[lbruk]

You dont have a right to be accompanied to an investigatory meeting, but you do have a statutory right to be accompanied to both a disciplinary and grievances. The ACAS code still applies to them!

[becky2585]

With under a years service, they don't have to offer you the right to be accompanied. They don't even have to follow any sort of procedure.

 

However, if you subsequently brought a discrimination claim alongside an unfair dismissal claim and won, theyd suffer the cost consequences.

[Prouty99]

Its in their contract, and staff handbook regardless of service

 

Besides, here's an example;

 

A company doesn't have a contract saying they pay their staff £2 an hour, because irrespective of their contract the law takes precedent.

 

Same here, even if the company states in their contract that ACAS code doesn't apply to them, the code takes precedent.

 

If anyone in the country with less than 2 years service could just be fired at will without warning, representation, explanation, appeal, or given the chance of a defence, then there wouldn't be anyone left in employment as companies would run amok

 

The HR company in question today rolled over in writing on the DPA issue, and the breach of ACAS code, and breaching S10 of ERA, and rapidly distanced itself from the company its representing stating that the company did these things without authorisation of the HR company.

 

HR is now left to come up with a just, and equitable resolution to the issue, or face a court deciding for them (be that civil or otherwise)

 

I'll keep you posted, as i hope it gives some ideas to others on the CAG forum who may be in the same position.

[Prouty99]

Apologies for the follow up, but i think it would be useful for others to know my length of service (for comparison with their own cases)

 

2 months 2 weeks

 

[lbruk]

Its in their contract, and staff handbook regardless of service

 

Besides, here's an example;

 

A company doesn't have a contract saying they pay their staff £2 an hour, because irrespective of their contract the law takes precedent.

 

Same here, even if the company states in their contract that ACAS code doesn't apply to them, the code takes precedent.

 

If anyone in the country with less than 2 years service could just be fired at will without warning, representation, explanation, appeal, or given the chance of a defence, then there wouldn't be anyone left in employment as companies would run amok

 

The HR company in question today rolled over in writing on the DPA issue, and the breach of ACAS code, and breaching S10 of ERA, and rapidly distanced itself from the company its representing stating that the company did these things without authorisation of the HR company.

 

HR is now left to come up with a just, and equitable resolution to the issue, or face a court deciding for them (be that civil or otherwise)

 

I'll keep you posted, as i hope it gives some ideas to others on the CAG forum who may be in the same position.

 

You are incorrect, they can fire you without warning or following a proper process if they want too, there are people that serve over 2 years that would earn these employment rights. The 2 years applies after April 1st this year, so it had to be one year.

 

As long as their reason for dismissing someone is not discriminatory, then they can do it.

[becky2585]

I'm curious as to what claim you're going to attempt to bring? You can't claim unfair dismissal, and you haven't said its discrimination. The best you could hope for is a loss of chance claim, but that's only open to people who are a smidgen under one years service, rather than ten months off.

 

Companies can indeed now fire at will with under one or two years service without having to follow procedure. As long as they don't discriminate, the laws on their side.

[Prouty99]

Update on the case:

 

Apologies for this taking so long in replying

 

Today, 8/3/2013, i won my case at Manchester Employment Tribunal.

 

I only had 11 weeks, 4 days service out of 12 weeks probationary period, (yes, i was 1 day away from becoming a permanent employee)

 

I was refused trade union representation at the dismissal hearing, and the court ruled that i should have been allowed representation, and with the breach of DPA regs being an aggravating factor, the whole dismissal was seen as vexatious in nature.

 

Yes you are right i couldn't bring an unfair dismissal, or even wrongful dismissal, as the length of service had no recourse to tribunal on these points. With this in mind the only case that could be brought was on section 10 ERA 1999.

 

The company assumed that it could ignore its own disciplinary procedure during probationary period, yes , this was in the contract that they were allowed to do this, and i stupidly signed the contract agreeing to this draconian measure.

 

However...,even if you sign the contract agreeing to waive your employment rights during probationary period, ERA 99 sect 10 still over-rules this, and you are still afforded statutory rights.

 

Moral of the story is, you cannot sign your rights away under Employment relations act, as they are set in stone.

 

A victory indeed for trade unionists everywhere.

 

I was awarded up to 2 weeks pay (which is a drop in the ocean under the circumstances), although the respondents were ordered to pay costs which amounted to the region of 10K

 

Section 10 claims are pretty much always settled out of court as the amounts claimed are piddling compared to costs. This case proved the point, as the company could have settled for less than a thousand, but pushed it through tribunal and lost 11K.

 

If i had lost, then companies everywhere would have been able to use it as a tool to refuse trade union representation everywhere at any time.

[becky2585]

Well done - I've never seen that case brought by itself!!

[Prouty99]

Neither have I, the legal team, or anyone else i have spoken to.

 

Even the judge was fascinated by the case, and he commented on the very interesting nature of the case once he had ruled on it. I even spotted a student in the public gallery who must have thought it was Christmas as she furiously scribbled down notes for her dissertation presumably.

 

I know others who have brought similar cases, although none have made it to tribunal, all have settled and are tied by confidentiality agreements (cannot be published)

 

The case wasn't brought specifically on this point, there was one other point that was dismissed, although the section 10 was the one that we wanted to focus on.

 

Unfair dismissal could not be brought because of being under 12 months service, so i didn't even consider pushing that into tribunal, and the DPA breach although we considered it, we felt that DPA regulations have no teeth in a courtroom. I once (a long time ago) pushed forward a DPA complaint after many hundreds of medical documents were left unprotected by a multinational company, and the ICO sent them an improvement notice....one letter, that was it.

 

Moral of the Sect 10 story is that anyone no matter of length of service has the statutory right to representation, and a court will punish you if you attempt to prove otherwise.

[becky2585]

That is very interesting! Are you getting a written judgment? If so would you mind attaching a copy (it's now public, so no confidentiality issue).

 

I presume the key point here was that you asked for representation but were refused? To be honest, I've always been of the opinion that an employee doesn't have the right to be accompanied with under a years service, so I find this really interesting!

[ericsbrother]

To be honest, I've always been of the opinion that an employee doesn't have the right to be accompanied with under a years service, so I find this really interesting!

 

Where in the Act is there wording that could lead anyone to think that it disapplied to workers with less than a year's service? Do you assume that the HASAWA doesnt apply to those workers as well? I hope that no ex-employess of your company has suffered as a result of your anti-union position.

[becky2585]

To be honest, I've always been of the opinion that an employee doesn't have the right to be accompanied with under a years service, so I find this really interesting!

 

Where in the Act is there wording that could lead anyone to think that it disapplied to workers with less than a year's service? Do you assume that the HASAWA doesnt apply to those workers as well? I hope that no ex-employess of your company has suffered as a result of your anti-union position.

 

I'm not entirely sure why you're aiming your misinformed rant at me, but I'm not an employer nor am I anti union.

 

I'm also not sure which act you're referring to, however if an employee can't bring a standard unfair dismissal claim then logic dictates that the ACAS Code of Practice doesn't need to be adhered to if there's no risk of the employee bringing a claim.

 

Hence my interest in the judgment here...

[Sidewinder]

Where in the Act is there wording that could lead anyone to think that it disapplied to workers with less than a year's service? Do you assume that the HASAWA doesnt apply to those workers as well? I hope that no ex-employess of your company has suffered as a result of your anti-union position.

 

 

The original question was a fair one, and doesn't really deserve the tone applied to your comments. Please keep matters civil.

[stu007]

Update on the case:

 

Apologies for this taking so long in replying

 

Today, 8/3/2013, i won my case at Manchester Employment Tribunal.

 

I only had 11 weeks, 4 days service out of 12 weeks probationary period, (yes, i was 1 day away from becoming a permanent employee)

 

I was refused trade union representation at the dismissal hearing, and the court ruled that i should have been allowed representation, and with the breach of DPA regs being an aggravating factor, the whole dismissal was seen as vexatious in nature.

 

Yes you are right i couldn't bring an unfair dismissal, or even wrongful dismissal, as the length of service had no recourse to tribunal on these points. With this in mind the only case that could be brought was on section 10 ERA 1999.

 

The company assumed that it could ignore its own disciplinary procedure during probationary period, yes , this was in the contract that they were allowed to do this, and i stupidly signed the contract agreeing to this draconian measure.

 

However...,even if you sign the contract agreeing to waive your employment rights during probationary period, ERA 99 sect 10 still over-rules this, and you are still afforded statutory rights.

 

Moral of the story is, you cannot sign your rights away under Employment relations act, as they are set in stone.

 

A victory indeed for trade unionists everywhere.

 

I was awarded up to 2 weeks pay (which is a drop in the ocean under the circumstances), although the respondents were ordered to pay costs which amounted to the region of 10K

 

Section 10 claims are pretty much always settled out of court as the amounts claimed are piddling compared to costs. This case proved the point, as the company could have settled for less than a thousand, but pushed it through tribunal and lost 11K.

 

If i had lost, then companies everywhere would have been able to use it as a tool to refuse trade union representation everywhere at any time.

 

 

Hi prouty99

 

Thats excellent news and well done to you for your determination, now would you like your thread title changed to reflect this.