Employment Appeal Tribunal Oral hearing help needed

[becky2585]

Good question Marie I would have thought logically it could actually be either! I'll look it up and post back this afternoon!

[becky2585]

Looks like its 42 days from the point where the written record of the judgment is sent to the parties. And theoretically, that should be sent out within 14 days. It's the date sent (ie stamped by the ET) not when it's received. It's also a 4pm deadline, not midnight, like at the ET.

 

If a partial decision is received, it's the date on which the full reasons are received when the clock starts ticking.

[mariefab]

Thank you Becky.

[billybobyeeharrboy]

(Note to self - read the OP.)

 

If the written ET judgement has either inadequate or no reasons for the decision the EAT can use the Burns/Barke procedure to require the ET to provide fuller reasons.

You can't ask the ET for these yourself but, if you can't tell why you lost from reading the ET's written judgement, I don't see why you couldn't request that the EAT consider using the procedure.

 

Hi Mariefab,

 

many thanks for your post, in response I have applied for an appeal already but this was refused and now I have an oral hearing infront of the judge without the respondent present. This will be my opportunity to put forward my case to show how the judge erred in reasoning and law and did not read my witness statement or evidence properly and was possibly bias towards the employer.

 

I do have a written judgement spanning 15 pages long. The part of the judgement which focuses on the actual decision is only 3 pages long and provides no adequate reasoning as to why the tribunal found that no discrimination took place, I find this a joke as there was plenty of incidents reported in my witness statement backed by evidence which in many cases the judge has failed to even mention.

 

Please, Mariefab, how do I go about applying to the EAT under the Burns/ Barke process?

 

thanks for all your help

 

Best Regards

 

BB

[billybobyeeharrboy]

Hi all.

 

I have a letter here which is being sent to the company in question over clear breaches of the data protection act with regards to distributing my medical report within the company without my consent. I know it's a little hard to read with the XXX's but please have a look with regards to any amendments, issues that you think would help.

 

Many thanks for your time, good luck with all your cases and God bless

 

BB

 

To XXX

 

 

 

 

 

I am writing to make a formal complaint against XXX. My complaint is that XXX has:

 

 

• Breached the data protection act 1998
  
• Disclosed sensitive information without my consent
  
• Gone against my express wishes
  
• Had no respect for my private and family life. Article 8 of the European Convention on Human Rights
  

 

Information, submitted by XXX, during Tribunal proceedings, exposes how my very sensitive information, which details my mental health and my family’s personal circumstances was handled in a less then sensitive or fair capacity byXX XX staff.

In an e-mail from XX to XX, dated and timed XX (attached), it is quite clear that my personal medical reports have been distributed within the company without my consent.

"he was very keen for the report to only go to XX and not to be seen by other people. Therefore I wouldn't refer to it in the meeting as such."

 

I expressly stated I wanted the report to go to XX (HR manager), and XXonly. XX have breached the law and gone against my wishes, many people within your organisation have seen this report, including the most junior secretary.

 

It is clear that I spoke to XX on the XX 2010 for XX minutes. She rang me on her mobile, therefore the phone call was unofficial and XX seems to have no records of this conversation. During this conversation I had the opportunity to disclose for the first time personal information to XX

 

While speaking to XX, she had the capacity to form an opinion that I, ‘should not have been at work for the last six months.’ However she lacked the insight to:

 

a) Decide upon whether a formal risk assessment was required

b) Decide upon how the medical reports, which she persuaded me to sign, would be used fairly and in a transparently.

 

Obviously sensitive information was being passed over from my GP’s Surgery and I wanted to be assured that the information was being kept confidential. I was never informed how the information was being used or who it was distributed to.

 

I did not sign the medical consent form because in the first instance I did not want my confidential medical information passed freely around the company. This was confidential information and I did not want it to be abused. Which is exactly what happened.

 

After speaking with XX, she informed me that she could only help me in my distress if I agreed to sign the medical consent form. I stated I only wanted the doctor’s report to go to her and her only.

 

Therefore had XX been open and honest about how XX intended to use my data, i.e. XX would freely distribute my information around the company without my consent then I would have not signed my medical consent.

 

I think it is unfair that XX used XX as a ‘go-between’ myself and the company collating information, later to be used against me. Especially, the fact that XX pretended to know nothing about my circumstances when she had clearly seen my medical report and she was well informed in advance. This is neither fair nor transparent use of sensitive information.

 

I will be seeking legal advice. Before taking this further and incurring further time and court costs for both parties, not to mention further damage to XX’s reputation as a company I am willing to negotiate a settlement.

 

I look forwards to hearing from you within the next 14 days with a settlement figure.

 

Sincerely

 

xxx

[becky2585]

Strictly speaking, anything mentioning settlement should be done off the record or on a without prejudice basis.

 

If you are trying to intimate a claim against them, you need to know what claim you are intimating. You can only claim compensation on limited grounds where you can show that misuse of your sensitive personal data has caused you a financial loss - emotional distress isn't enough, but you could contact the Information Commissioners Office for guidance - they are usually very helpful over the phone.

[billybobyeeharrboy]

Hi Becky,

 

many thanks for your advice, It is hard to prove what actual financial loss I have incurred other than not having been able to work for the last year and a half due to the stress the unfair treatment has exerted upon myself.

As far as the claim is concerned I have been subjected to interference with my rights under the Data Protection Act and legal action can be brought against said company.

 

Could you elaborate as to 'off the record' and 'without prejudice' re settlement as I am unsure of exactly what that means.

 

Other than that the letter was correctly drafter in your op?

 

Many thanks

 

BB

[billybobyeeharrboy]

Hi all.

 

I have a letter here which is being sent to the company in question over clear breaches of the data protection act with regards to distributing my medical report within the company without my consent. I know it's a little hard to read with the XXX's but please have a look with regards to any amendments, issues that you think would help.

 

Many thanks for your time, good luck with all your cases and God bless

 

BB

 

To XXX

 

 

 

 

 

I am writing to make a formal complaint against XXX. My complaint is that XXX has:

 

 

• Breached the data protection act 1998
  
• Disclosed sensitive information without my consent
  
• Gone against my express wishes
  
• Had no respect for my private and family life. Article 8 of the European Convention on Human Rights
  

 

Information, submitted by XXX, during Tribunal proceedings, exposes how my very sensitive information, which details my mental health and my family’s personal circumstances was handled in a less then sensitive or fair capacity byXX XX staff.

 

In an e-mail from XX to XX, dated and timed XX (attached), it is quite clear that my personal medical reports have been distributed within the company without my consent.

 

"he was very keen for the report to only go to XX and not to be seen by other people. Therefore I wouldn't refer to it in the meeting as such."

 

I expressly stated I wanted the report to go to XX (HR manager), and XXonly. XX have breached the law and gone against my wishes, many people within your organisation have seen this report, including the most junior secretary.

 

It is clear that I spoke to XX on the XX 2010 for XX minutes. She rang me on her mobile, therefore the phone call was unofficial and XX seems to have no records of this conversation. During this conversation I had the opportunity to disclose for the first time personal information to XX

 

While speaking to XX, she had the capacity to form an opinion that I, ‘should not have been at work for the last six months.’ However she lacked the insight to:

 

a) Decide upon whether a formal risk assessment was required

b) Decide upon how the medical reports, which she persuaded me to sign, would be used fairly and in a transparently.

 

Obviously sensitive information was being passed over from my GP’s Surgery and I wanted to be assured that the information was being kept confidential. I was never informed how the information was being used or who it was distributed to.

 

I did not sign the medical consent form because in the first instance I did not want my confidential medical information passed freely around the company. This was confidential information and I did not want it to be abused. Which is exactly what happened.

 

After speaking with XX, she informed me that she could only help me in my distress if I agreed to sign the medical consent form. I stated I only wanted the doctor’s report to go to her and her only.

 

Therefore had XX been open and honest about how XX intended to use my data, i.e. XX would freely distribute my information around the company without my consent then I would have not signed my medical consent.

 

I think it is unfair that XX used XX as a ‘go-between’ myself and the company collating information, later to be used against me. Especially, the fact that XX pretended to know nothing about my circumstances when she had clearly seen my medical report and she was well informed in advance. This is neither fair nor transparent use of sensitive information.

 

I will be seeking legal advice. Before taking this further and incurring further time and court costs for both parties, not to mention further damage to XX’s reputation as a company I am willing to negotiate a settlement.

 

I look forwards to hearing from you within the next 14 days with a settlement figure.

 

Sincerely

 

xxx

[becky2585]

The problem is that if you try to rely on the letter at any future court hearing, inviting offers of settlement could mean that your employer has an argument that the letter is not admissible as it was without prejudice -ie., a genuine attempt or offer to settle a dispute. Only "open" correspondence can be used in evidence. So ideally, you would send two separate letters - the first highlighting their legal liability, as you have done - and the second referring to the first letter and offering to settle before any future action is taken.

 

I've seen respondents argue that open letters were ignored because they were perceived to be without prejudice - its just a headache you could do without!

[assisted blonde]

Hi can I just ask to what extent was the information distributed around the company. The reason I am asking is that to only expect the information to go to one person would make it very difficult for a company to act on it as in any company no one can act alone, it would I suspect be reasonable for information to be shared with, your line manager or company boss, in fact those that make decisions as to working practises and to those who are responsible for the running of the company.

[Emmzzi]

Here is my harsh but honest assessment which is my personal opinion.

 

Your letter is too long

 

You are confusing distress caused by DPA breach with other issues - I am not clear what distress the DPA breach has caused you

 

I would not say "lacked the insight to.." as it just sounds bitchy. Stick to what was or was not done and don't assume you know the reason why.

 

Breach of Human Rights is almost always incorrect and geerally makes an expert reader think "nutter." Sorry, but it does! Is your example like any of the examples here? If so can you say so clearly and concisely?

 

http://en.wikipedia.org/wiki/Article_8_of_the_European_Convention_on_Human_Rights

 

 

And as you have no idea what settlement you want I would consult a solicitor first. Me, I would ignore this letter because it reads like a bluff.

[becky2585]

Incidentally I'm not commenting on whether such a claim can be brought - it depends on any clauses in your contract making reference to data protection and with whom your information can be shared, and also any consent forms you signed (and clauses in your contract or relevant work policies) which relate to the disclosure of the report. They may wriggle out of it by saying it was never shared externally.

 

I also wouldn't mention the human rights point - generally speaking it is more likely than not to serve to weaken any valid arguments you do have!

[billybobyeeharrboy]

Hi Becky,

 

This is really helpful and many thanks for this. I thought I understood it initially but no I am plain confused having read the CAG definition of Without predjudice.

 

So basically the first letter I need submit will highlight the legal liability: This will be an open letter???

 

then the second letter will follow up from the first and will invite an out of court settlement (this will be titled: 'without predjudice'???)

 

thanks so much for pointing this out to me as I would never had known, but I just need to get my head around this...

 

Regards

 

BB

[billybobyeeharrboy]

Hi,

 

Assisted blonde and Emzi, thanks for your advice Emziii (I am sure you have seen this before)

 

attached is the message which initiated the whole pandemonium. It hopefully answers some of the points raised in your post Assisted blonde.

 

The fact of the matter is the medical report contains details of my father's death and for the company to distribute it internally (I don't know how many ppl saw it) without my consent does indeed cause me distress as I had hoped it would be treated fairly and in a sensitive matter, not as a weapon, leaving me guessing who knows what / is gossiping behind my back about my mental health and my family's circumstances.

 

Yes I did sign a medical consent form after the HR manager confirmed that the medial report would only go to her, I didn't realise it would be used in a non-transparent manner leaving me guessing the whole time who knew what.

 

Emzii thanks for the reality check I think your points raised are really excellent and I will amend the letter accordingly.

 

Becky could you just confirm the point re the two letters; 'open' and 'without predjudice'

 

Regards

 

BB

boc .pdf

[Emmzzi]

I am sorry for your loss.

 

Your father's death is a matter of public record.

 

I think you will fare better concentrating on your own mental health issues which could have had an effect on how others treated you.

 

A general "I await with interest your comments on this matter" may be a better opening gambit as it opens the door to an off the record conversation about what would appease you.

 

For example an extra week off and a grand to pay for a holiday would not be unheard of, IF they are minded to appease.

 

If they are not, then they are not.

 

Or you may wish to say "in accordance with the procedure suggested by the ICO I am hereby giving you an opportunity to resolve this situation and awaut your comments on how you believe this can be done." That shows you know the correct procedure. However note the ICO cannot award you compensation so if that is your aim you are probably on a sticky wicket. an apology and review of process is more common.

 

 

http://www.ico.gov.uk/complaints/handling.aspx

[becky2585]

Hi Becky,

 

This is really helpful and many thanks for this. I thought I understood it initially but no I am plain confused having read the CAG definition of Without predjudice.

 

So basically the first letter I need submit will highlight the legal liability: This will be an open letter???

 

then the second letter will follow up from the first and will invite an out of court settlement (this will be titled: 'without predjudice'???)

 

thanks so much for pointing this out to me as I would never had known, but I just need to get my head around this...

 

Regards

 

BB

 

Yes, that's right. Sorry, didn't mean to confuse you.

[billybobyeeharrboy]

Hi peeps,

 

many thanks for your input,

 

I took 'settlement' out and the part about human rights out (yes, that does sound a bit nutty)

 

apart from that I kept the letter pretty much the same and ended with both of emzii's suggestions, as per the ICO guidance and I await with interest your comments on the matter.

 

Thanks again for all your input.

 

Best regards

BB

[billybobynumeroduo]

Hi people,

 

having some problems with my account so posting under new account

 

I have taken people's views into account and have spoken to the ICO people, I realise that the specific breaches of the DPA 1998 principles need to be mentioned to be as accurate as possible.

 

I have updated my letter below and would be most grateful for any input.

 

Best wishes and God bless

 

BB

 

xxxx

 

I am writing to make a formal complaint against xxx My complaint is that xxx has:

 

 

• Breached the data protection act 1998 (principles 1, 2, 6 and 7)
  
• Disclosed sensitive information without my consent
  

 

Information, submitted by xxx, during Tribunal proceedings, exposes how my very sensitive information, which details my mental health and my family’s tragic personal circumstances was handled in a less then sensitive or fair capacity by xxx staff. (breach of principle 1- personal data shall be processed fairly)

In an e-mail from xxx to xxx, dated and timed xxx (attached), it is quite clear that my personal medical reports have been distributed within the company without my consent. (breach of principle 6- Personal data shall be processed in accordance with the rights of data subjects under this Act.)

"he was very keen for the report to only go to xxx and not to be seen by other people. Therefore I wouldn't refer to it in the meeting as such (certainly don’t let him know you have seen it)"

 

I explicitly stated I wanted the report to go to xxx (HR manager), and xxx only. I wanted my personal information to be as restricted as possible within xxx

 

xxx have gone against the right I had under principle 6, by disclosing the information to other individuals. The data was not used fairly as per my requirements resulting in a breach of principle 1. The data was obtained by deception by stating that the information would go to one specific individual. (principle 1 and principle 6) The data was not used for the purpose that it was gathered in the first place, to help in ensuring a 4 day working week (principle 2)

 

It is clear that I spoke to xxx on the xxx for xxx minutes. She rang me on her mobile, therefore the phone call was unofficial and xxx seems to have no records of this conversation. If there is any doubt as to the content of this conversation I am sure we can both mutually agree to obtain the recording from xxx’s mobile network provider.

 

While speaking to xxx, she had the capacity to form an opinion that I, ‘should not have been at work for the last six months.’ However she did not:

 

a) Decide upon whether a formal risk assessment was required

b) Decide upon how the medical reports, which she persuaded me to sign, would be used fairly and in a transparently. (breach of principle 1)

 

At no point, following the xxx until my resignation on xxx, did anyone within xxx, inform me as to how the information was being used or who it was distributed to.

 

xxx informed me that she could only help me in my distress if I agreed to sign the medical consent form. I stated I only wanted the doctor’s report to go to her and her only. Therefore had xxx been open and honest about how xxx intended to use my data, i.e. xxx would freely distribute my information around the company without my consent, which does not appear to be in line with DPA principle 7 (keeping data secure) I would therefore have not signed my medical consent.

 

I will be seeking legal advice. Before taking this further and incurring further time and court costs for both parties, not to mention further damage to xxx’s reputation as a company, in accordance with the procedure suggested by the Information Commissioners Office, I am hereby giving you an opportunity to resolve this situation.

 

I look forwards to hearing from you within the next 14 days and I await with interest your comments on this matter.

 

Sincerely

 

Xxx

 

Cc: xxx

Cc: xxx

Cc: xxx

[billybobynumeroduo]

Hi all just a quick update,

 

I have yet to send this letter (re DPA breaches) off because I am awaiting the response from the employer regarding a Subject access request I made at the beginning of October. The 40 day deadline for the response falls within the next couple of working days.

 

I was just wondering what happens if the employer fails to comply with the SAR? I submitted it recorded delivery so it I know has been received. Just wondering what peoples thoughts are to make sure the request is enforced and complied with.

 

Many thanks

 

BB

[billybobynumeroduo]

Hi there,

 

just posting again to see if anyone can clarify what happens if a company does not comply with a Subject Access Request?

 

Kind Regards

 

BB

[billybobynumeroduo]

Hi there,

 

quick update third letter under Subject Access and the company are still refusing to disclose what I have requested . Formal complaint to ICO in order me thinks!

 

How can they withold info when I am legally entitled to it!

[Pusillanimous]

You should have contacted ICO right from the outset (after giving the respondent enough time to respond, of course). Problem is, you are not now going to have the data you want before your hearing.

[billybobynumeroduo]

Hi there,

 

pus, you are right here, I have asked the ICO to mark my complaint as urgent yet who knows when they will contact the respondent. Hopefully the info will be forthcoming before the hearing which is set to take place in 60 or so days!

 

Regards

 

BB

[billybobynumeroduo]

Once the ICO write to the company, they have a ten day limit for a full response