Subject access info received from Respondents (parts still missing)

[billybobynumeroduo]

hi there,

 

for all the caggers whom have helped with my Subject access request for disclosure of documents I would like to say a massive thank you.

 

I received a vital telephone recording which is going to be very good evidence to be used at the EAT Oral hearing 3(10)

 

Infact this telephone convo. was request by my solicitor before the original ET hearing back in March 2011

and existence of it was denied by the R's solicitor,

so shame that it took an SAR to get them to disclose what they should have disclosed first time around!

 

Excellent result none the less.

 

HOWEVER I still am missing parts of information.

 

E.G once this conversation took place the H.R manager advised that they would speak to other members of the department to inform them also.

 

All details of these further conversation/s have been left out.

 

Both recordings and emails omitted.

 

Q: how do I word a quick email to the respondent to say that EVERYTHING needs to be disclosed for an SAR as per the ICO guidlines.

 

Therefore these specific details of convo.s should be included also.

 

Therefore how does one word this legally? My request for FULL disclosure that is?

 

In the meantime I shall be on the phone to ICO

 

Many thanks and blessings Caggers

 

Regards

 

BB

[dj1971]

Hi Billyboby,

 

Personally I would keep it simple with an email saying thanks for the documentation already received, however there does appear to be further documentation not yet disclosed. The documentation I still require is ...................... As the statutory 40 days allowed for disclosure have already passed, I require you to provide the remaining information as detailed above within 14 days.

 

DJ

[billybobynumeroduo]

Hi DJ,

 

many thanks for this, where you have ...... I will substitute this with the specific examples of what I think/know is missing.

 

Kind regards

 

All the best

 

BB

[Pusillanimous]

You will be able to apply to have this as fresh evidence, i.e., evidence which was not available to you at the time. Look in the practice directions and make an application to do so, under the relevant section, so that it can be included in your bundle and looked at as "fresh evidence" formally.

[billybobynumeroduo]

Hi Pusillanimous,

 

excellent thanks for this, I just posted the question to your answer on my Oral hearing at EAT thread.

One thing, will the judge definitety see this, 'new evidence' and will it be given a proper look into by the judge.

 

In addition to this please can you point me to where I can find the practice directions online?

 

Kind Regards

 

BB

[Pusillanimous]

billyboby the EAT should have sent you the practice directions on receipt of your appeal. I would recommend contacting them and asking for a copy, as they are essential.

 

Please see also, re new evidence, a revision to the rules.

 

https://docs.google.com/viewer?a=v&q=cache:Mkp5QYuUVPgJ:www.justice.gov.uk/downloads/tribunals/employment-appeals/eat-practice-statement.pdf+&hl=en&gl=uk&pid=bl&srcid=ADGEESgX4_xIvcnEx1Xl2auE5JEvqox3Ff35YkiQ9vWnSv78aZOBv_BZXu-04egkulsXqR6s8BHMF82DSxtqGMbRB9EPtPs05S9arrHKya24GJyvN743Oq50eM1mpwdA2y1QzmEGQxLI&sig=AHIEtbT4BLBalxiTT_LZBZ_cRCgbZh9uRA

[Pusillanimous]

You can find an online copy of the practice directions here:

 

https://docs.google.com/viewer?a=v&q=cache:4dTV5m0nyzwJ:www.justice.gov.uk/downloads/tribunals/employment-appeals/forms-and-how-to-appeal/EAT_PD.pdf+&hl=en&gl=uk&pid=bl&srcid=ADGEESiVp0PD1pTwtcbu1RXmQLCOyXnvqZ4AgSMJnSTOfXF2YKcpBdZG-gcDau-V15pLHrTmQnp_WUsA9FS4NL4B0QVZSzdq1WAx-RAJPUKEu-ps1Ix1LA-cNbS91Jb8yvhYDaG851es&sig=AHIEtbSm3N-WqXbt-0JoXffweO8ZE9F4EA

 

It is essential to read it thoroughly as once you are out of time, that is it.

[billybobynumeroduo]

billyboby the EAT should have sent you the practice directions on receipt of your appeal. I would recommend contacting them and asking for a copy, as they are essential.

 

Please see also, re new evidence, a revision to the rules.

 

https://docs.google.com/viewer?a=v&q=cache:Mkp5QYuUVPgJ:www.justice.gov.uk/downloads/tribunals/employment-appeals/eat-practice-statement.pdf+&hl=en&gl=uk&pid=bl&srcid=ADGEESgX4_xIvcnEx1Xl2auE5JEvqox3Ff35YkiQ9vWnSv78aZOBv_BZXu-04egkulsXqR6s8BHMF82DSxtqGMbRB9EPtPs05S9arrHKya24GJyvN743Oq50eM1mpwdA2y1QzmEGQxLI&sig=AHIEtbT4BLBalxiTT_LZBZ_cRCgbZh9uRA

 

Hi Pusillanimous,

 

I have had a look at the above link but am still unsure of its meaning, apart from the caselaw cited, could you elaborate on this as I am confused!

 

Best wishes

 

BB

[Pusillanimous]

Basically, what the revision is saying , re fresh evidence, is that it should be forwarded to the original EJ, first as part of a request for a review. However, as there are strict time limits for this, this is probably well out of time, by now?

 

Any barrister bod here who can explain how this should work? Should BB#2 send the "fresh evidence" to the original ET or the EAT?

[billybobynumeroduo]

Hi Pusillanimous,

 

many thanks for clarifying this..

 

this evidence has only come to light yesterday, following an SAR disclosure.

It was requested before the ET hearing and its existence denied by the Respondnets solicitor.

Therefore the Review has already been submitted and refused and the appeal has already been submitted and refused. The refusal of appeal was back in July.

 

The Oral hearing is set for Feb 2013.

 

So I assume, the new evidence is well out of time for both review and appeal.

 

Best regards

 

BB

[Pusillanimous]

I would recommend setting out a formal application for submission of fresh evidence, as per the Practice Directions, and await their response (quote the PD regulation no. and subsection in respect of this). It is a formal court so you need to be formal.

 

Ask permission to include the fresh evidence in the bundle. (You do not need witness statements in the bundle.)

 

The EAT should have sent you a letter or e-mail telling you exactly what they want you to include in your bundle. If not contact your case worker and ask for the list.

[billybobynumeroduo]

I would recommend setting out a formal application for submission of fresh evidence, as per the Practice Directions, and await their response (quote the PD regulation no. and subsection in respect of this). It is a formal court so you need to be formal.

 

Ask permission to include the fresh evidence in the bundle. (You do not need witness statements in the bundle.)

 

The EAT should have sent you a letter or e-mail telling you exactly what they want you to include in your bundle. If not contact your case worker and ask for the list.

 

Hi Pusillanimous,

 

the caseworker has not supplied me with a any written documentation which details what they want included in the bundle, the caseworker is only agreeing to inform me verbally, which is not good!

 

I will make an application for fresh evidence later on today, do you know of a template I could use for this?

 

Regards

 

BB

[billybobynumeroduo]

Regarding the R's not including the information requested, the Respondents have undermined the case that was put before the judge/ court?

Have the Respondents breached disclosure rules? Because the Judge has made a decision without the full facts before him.

 

 

 

 

When the judge considered ET1 evidence at trial because fact was not proved (ie evidence was omitted) less weight was given to it, therefore the knock-on effect, the medical report that was received in December proved the disability and established the duty of care, as found in the judgment. However the respondent knew back in October of my bad health, deteriorating condition and had not taken any action, not made any adjustment in fact had imposed a very heavy workload and criticised me publically in terms of performance.

It was at this moment in time October to December the damage was being done in terms of mutual trust and confidence.

 

I have probably gone over this before but I am so worried that this new evidence will not be heard.

 

This new evidence needs consideration.

 

 

Sorry if I am repeating this!

 

 

Regards

 

 

BB

[billybobynumeroduo]

You can find an online copy of the practice directions here:

 

https://docs.google.com/viewer?a=v&q=cache:4dTV5m0nyzwJ:www.justice.gov.uk/downloads/tribunals/employment-appeals/forms-and-how-to-appeal/EAT_PD.pdf+&hl=en&gl=uk&pid=bl&srcid=ADGEESiVp0PD1pTwtcbu1RXmQLCOyXnvqZ4AgSMJnSTOfXF2YKcpBdZG-gcDau-V15pLHrTmQnp_WUsA9FS4NL4B0QVZSzdq1WAx-RAJPUKEu-ps1Ix1LA-cNbS91Jb8yvhYDaG851es&sig=AHIEtbSm3N-WqXbt-0JoXffweO8ZE9F4EA

 

It is essential to read it thoroughly as once you are out of time, that is it.

 

Excellent Pusillanimous for this,

 

I now have a copy of the practise directions , I have had a look at section 8 (Fresh Evidence) and see now (sort of) how the new evidence needs to be submitted and what requirements it needs to meet (luckily the evidence meets all 3 requirements) however it seems that section 8 is concern with FH- full hearings?? and employment tribunal hearings and not Oral hearings 3(10). Please correct me if I am wrong, I will be onto the case worker first thing tomorrow.

 

Regards BB

 

8 Fresh Evidence and New Points of Law

8.1 Where an application is made by a party to an appeal to put in, at the hearing of the appeal, any document which was not before the Employment Tribunal, and which has not been agreed in writing by the other parties, the application and a copy of the documents sought to be admitted should be lodged at the EAT with the Notice of Appeal or the respondent’s Answer, as appropriate. The application and copy should be served on the other parties. The same principle applies to any oral evidence not given at the Employment Tribunal which is sought to be adduced on the appeal. The nature and substance of such evidence together with the date when the party first became aware of its existence must be disclosed in a document, where appropriate a witness statement from the relevant witness with signed statement of truth, which must be similarly lodged and served.

8.2 In exercising its discretion to admit any fresh evidence or new document, the EAT will apply the principles set out in Ladd v Marshall [1954] 1WLR 1489, having regard to the overriding objective, i.e.:

8.2.1 the evidence could not have been obtained with reasonable diligence for use at the Employment Tribunal hearing;

8.2.2 it is relevant and would probably have had an important influence on the hearing;

8.2.3 it is apparently credible.

Accordingly the evidence and representations in support of the application must address these principles.

8.3 A party wishing to resist the application must, within 14 days of its being sent, submit any representations in response to the EAT and other parties.

8.4 The application will be considered by the Registrar or a judge on the papers (or, if appropriate, at a PH) who may determine the issue or give directions for a hearing or may seek comments from the employment judge. A copy of any comments received from the employment judge will be sent to all parties.

 

8.5 If a respondent intends to contend at the FH that the appellant has raised a point which was not argued below, the respondent shall so state:

8.5.1 if a PH has been ordered, in writing to the EAT and all parties, within 14 days of receiving the Notice of Appeal;

8.5.2 if the case is listed for a FH without a PH, in a respondent’s Answer.

In the event of dispute the employment judge should be asked for his/her comments as to whether a particular legal argument was deployed.

[billybobynumeroduo]

Hi there Caggers,

 

please find enclosed the response to my SAR and my SAR request (pdf format).

 

Please note the respondents have sneakily tried to cover their tracks by saying that the conversation that they sent to me disclosed in the SAR, 11, fell into category A; Personal data which has already been identified and provided to you. This is simply not true as the telephone conversation was pivotal and would have been used at the ET hearing.

 

The consequence of the employer deception (denial of the existence of said recording, which now has surprisingly materialised) is that less weight was given to the date I informed Employer of my disability, because there was no evidence to back it up, even though the R's were fully aware of it they breached disclosure rules and now in the SAR are claiming that it was provided to me BLATANT LIE!

 

Question I need to rebuke the SAR disclosure provided in my attachment and point out that:

 

a) many emails/ recordings are still missing

b) there are blatant lies in there also.

 

Do I need submit my SAR and employers SAR response to the EAT for Oral hearing 3(10)??

 

I really could do with this extra info as my Oral hearing is fast approaching

 

HELP!

Edited November 15, 2012 by billybobynumeroduo

[billybobynumeroduo]

Evening all,

 

please advise whom should deal with a Subject Access request?

 

Whom would be classed as the Data protection Officer: the HR manager or the compliance director???

 

I am confused.

 

Any advise most welcome.

[citizenB]

I would think the Compliance Director - but copy the HR Manager in any communication.. just to cover all angles

[citizenB]

When is your hearing date ?

[billybobynumeroduo]

I would think the Compliance Director - but copy the HR Manager in any communication.. just to cover all angles

 

Hi there,

 

yes I have made a Subject Access Request and I have received a response, namely a few documents with a covering letter and fresh evidence from the 'HR manager' who is already implicated in the case/ lies etc etc. Well I say HR, the letter was signed by the HR manager, they probably havent written, prob company lawyers.

 

I plan to write back addressing to the Compliance Director as you say to cover all angles. I find it strange I wrote to the data protection officer and got a reply from the HR manager! Maybe should have addressed SAR to C.D in the first place.

 

I need my request to be dealt with by someone more senior. To my understanding the Respondents are under a legal duty for their compliance/ data protection officer to deal with the matter and not pass it to HR!

 

Please advise

 

BTW my Oral hearing under 3 (10) is early next year so just preparing bundles, skeleton and fresh evidence at the moment

 

best regards

 

BB

[billybobynumeroduo]

Response to the company's response following my SAR

 

xx November 2012,

 

x company Data protection officer

 

Subject Access Request

Response to letter dated xx November 2012

 

Thank you for the documentation received included the covering letter dated xx November 2012. This bundle was collected from xx, outside the back entrance to xx’s office on xx November 2012 by myself.

 

A Further disclosure required

 

There does appear to be further documentation not yet disclosed.

 

Part of the evidence I still require is:

 

1. Conversation, telephone call with xx

 

2. Conversation, telephone call with xx and xx November 2010

 

3. Conversation, telephone call with xx, xx December 2010

 

Please advise why details of these conversations have not been disclosed yet? Please disclose this evidence as soon as possible.

 

B Eratum regarding xx

 

Please refer to query number xx of my Subject access request as itemized by xx

 

To my surprise xcompany have disclosed alongside the letter dated xx November 2012, additional personal data. Namely a digital tape recording between myself and xx

 

Please note this is the first time this evidence has come to light and been provided to me, contrary to what is written in your letter dated xx November 2012,

 

“ Provision of copies of your personal data falls into one of the following categories :

 

“A your personal data which has already been identified and provided to you during the course of the Employment Tribunal proceedings. A further copy has been enclosed with this letter. This category applies to your query number xx; “

 

The digital tape recording between myself and xx has only been produced and provided to me, for the first time, in an email from xx (xx November 2012) to myself.

Therefore the first time I was provided with a digital tape recording of this conversation was the xx of November 2012 and not as xcompany claim provided during the course of the Employment Tribunal proceedings.

 

In addition to this, when the digital tape recording was requested by C solicitor,( xx March 2011) its existence was denied by R solicitor. If this is not the case then please put down your own version of the events with evidence to support your claim.

 

C xx

 

xx sent me two emails late on xx. Where are the details of these two emails?

 

I sent an email to xx In this email I asked xx if details of our conversation had been passed on to xx. I also mentioned I wanted the strictest confidence regarding the matter. In addition to this I sent xx a further two SMS text messages:

 

I received no response from xx in response to my email or SMS’s, therefore on Monday I called xx to get a response to my email.

During the call xx informed me that she had already informed Mrxx of the details regarding our conversation xx.

 

There does appear to be further documentation not yet disclosed.

 

1.a) Emails from xx to me xxx

b) Email to xx from myself: xx

 

2. Details of SMS messages sent to xx

 

3. Digital tape recordings and further details of my conversation with xx xx.

 

4.Details of x informing xx regarding the conversation (xx to xx Call)

 

I find it very unfortunate that this still has yet to be provided. xx is based in xx, and mrxx based in xx. XX indeed advised me she had informed mrxx, this communication must have taken place by phone or email. Therefore were is proof of this?

 

Please advise why details of these conversations have not been disclosed? Please disclose this evidence as soon as possible.

 

D Text to xx

Further documentation, for the first time was provided in xx letter, dated xx nov 2012.

 

Email from xx

“ME has contacted xx over the weekend to say that he has work problems and doesn’t know who to talk too! I understand that xx has a copy of the text.”

 

Please advise why details of this text has not been disclosed? Please disclose this evidence as soon as possible.

 

Despite searches having been carried out there still appears to be extensive information missing, therefore it is clear xxx are still withholding information?

Who made the decision not to disclose? If it was xxx was it done in consultation with xxx?

 

As the statutory 40 days allowed for disclosure have already passed, I require you to provide all the remaining information as detailed above and a response to this letter asap.

 

 

 

Yours faithfully

 

XXX

[billybobynumeroduo]

I really would appreciate any responses from you caggers,

 

I have made a subject access request the company has disclosed one piece of pivotal info to my et hearing, which was not disclosed at the time.

 

They are still making a mockery of the request as so much is being witheld.

 

I really need help

 

Best regards

 

BB

[Emmzzi]

It's entirely possible no records of the phone calls exist....

[Pusillanimous]

I would not waste time arguing the case with the respondents; they already know what the truth is. Save the arguments for the hearing. Keep your cards close to your chest. You are helping them to rehearse their answers by challenging them. You have to bear in mind, their documentation is geared towards convincing the EAT, or the ET in the future, should it be remitted, not you.

 

Re the fresh evidence. As the EAT judge will read your case in advance of the hearing, then you do need to have the fresh evidence included, and this means making an application to amend the NoA (see practice directions) and at the same time make an application to include the fresh evidence, using the PD sections and subsections as your headers (i.e., how it fulfils the criteria). Remember to request permission to include it in the bundle. You might want to do the two applications on separate documents as some do prefer to keep all issues separate.

 

I do not have a template. However, all you need is a blank page. Insert UKEAT provisional case reference, names of parties, date of Rule 3(10) hearing and a formal header clearly stating that it is an application. Sign and date it and send the original to the EAT and a copy to the other party.

 

Keep it brief, preferably no more than one page as that is all people tend to read.

 

Don't bother arguing the other party's case. Just state your own.

 

Ask how the revised statement to the PD April 2012 re fresh evidence will affect your application in your cover letter.

 

If you can find case law where similar evidence was accepted, this will make it stronger. (Include in your application to amend the NoA.)