Subject Access SCANDAL? (employment tribunal)

[Faith3]

Hello there!

 

I'm new to this forum and would really appreciate some advice as I have exhausted Google/CAB!

 

My ex employer is a massive public sector organisation. I am currently in the process of taking them to the Employment Tribunal. I won't go into too much detail about that for now as I think I've got it all in hand.

 

Anywho, I made a SAR to my ex employer back in July for some of my HR record as it was necessary for my ET case. After a seven week delay (thats seven weeks AFTER the 40 day time limit) I finally received some of the information I had requested. I believe my complaint to the ICO gave them a kick up the bum.

 

Fortunately the day before receiving the SAR, the legal department at my ex employer sent me a copy of the information I had requested, so I now had two copies of the same document. When I compared both documents, it was clear that the Data Controller who sent me the SAR had redacted ALOT of information. The information they had redacted was not in relation to a third party, but information that supports my ET claim!!! They have also redacted any reference to an email that I had requested, that was attached to this document (this email supports my ET claim massively). Needless to say, they haven't sent me this email.

 

I immediately phoned the Data Controller and spoke to one of the advisors and the manager who both seemed extremely uncomfortable and eager to end the conversation. I have furthered my complaint with the ICO, who have passed this on to a specialist department.

 

Is someone able to tell me what I can do about this?! Is this not akin to attempting to pervert the course of justice?? I have a case management discussion next week, should this be brought up?? I'm unsure as it wasn't actually the legal department who tried to cover this information up, but still technically the Respondent did... I am livid and will now doubt any documents I am sent by the Respondent in future!

 

I apologise is some of this doesn't make sense, my toddler is currently trying to use me as a climbing frame!!!

 

Any advice very much appreciated!!

[steampowered]

I don't think the Tribunal itself could do much more than make an order that they disclose the unredacted document. As you already have the document I'm not sure the Tribunal could take any meaningful action here.

 

I think the appropriate action would be to raise a formal complaint with the ICO.

[Faith3]

Thanks for your reply!

 

Well I've already made a further complaint to the ICO, however they have said they do have quite a back log at the moment, so I can expect a wait for someone to address the issue! I understand that the ET wouldnt have jurisdiction over the DPA, but a County Court would, wouldn't they?

[steampowered]

Yes, you could seek a county court order requiring compliance with the DSAR under section 7 (9) of the DPA. You could also seek an order that you are compensated for any damage arising from failure to comply with the request under section 13 (1). You could also seek compensation for distress under section 13 (2) - however section 13(2) requires that you MUST also have suffered damage, or the claim must relate to the special purposes (journalism, art or literature). See http://www.legislation.gov.uk/ukpga/1998/29/section/13.

 

Unfortunately I do not think any of these claims quite work in your situation. A section 7 application would be pointless since you have the document. A section 13(1) application wouldn't work because you haven't suffered any damage. A section 13(2) application wouldn't work either since you have suffered no damage and the claim does not relate to journalism/art/literature. This must be very frustrating but I don't think there is a valid county court claim here.

 

I think it is the ICO who have the power to do something here. Even if they don't investigate your complaint specifically it would be good to get a complaint on record, so that they can see there is an issue if the same thing happens to other people.

[Faith3]

Thanks for your advice!!

 

Well they still haven't complied with section 7 as they are still yet to send me everything, however, I will probably be given this when myself and the Respondent's advisors swap documents.

 

It is incredibly frustrating, I don't understand how legislation can be breached so blatantly, yet nothing can actually be enforced. I feel there MUST be something else I can do, I mean they have tampered with evidence relating to legal (civil) proceedings...Also, by damages, would it not stand that they have attempted to rob me of my right to a fair employment tribunal and therefore fair compensation?

 

Do you think I should be bringing this up at the CMD?

[steampowered]

If you want to bring something up at the CMD I think you need to have a clear idea of the order which you want the Tribunal to make. Courts and Tribunals generally do not decide what to do by themselves, they generally decide on specific requests for an order made by one of the parties.

 

I think the most likely order is that each party will be ordered to disclose certain documents to the other side. If you want to seek a specific order about disclosure of specific documents which you are worried about then you request this. You could refer to this episode as a reason for requesting a specific order (i.e. you doubt the other side's commitment to fair disclosure).

 

I agree there is a real enforcement problem with the DPA. In theory the DPA is very wide and is a great way of getting documents but in practice it is very difficult to enforce. The courts have generally taken the view that the DPA was intended to allow individuals to monitor how their data is being used and protect their right to privacy, not to help people obtain documents for litigation. The reasoning seems to be that there is a specific stage during the litigation (or Tribunal) process designed to facilitate both parties exchanging documents relevant to the case, and that the DPA was not intended to allow one of the parties to skip ahead and get the documents earlier. The view is that this would be unfair since each side is supposed to get the other side's documents at the same time. I don't think there is a clear basis for distinguishing between 'privacy DSARs' and 'litigation DSARs' in the DPA itself but that is the view the courts have taken.

 

For this reason I would generally advocate that if people want to use a DSAR to get documents for litigation, they should complete the DSAR process before issuing their claim (subject to staying within Tribunal time limits).

 

Although I understand why you are frustrated, I am too, you haven't suffered any damage here because you already have an unredacted copy of the document for use in Tribunal. An "attempt" would count in criminal law but it doesn't count in civil law.

[citizenB]

Beecroft, I will move your post into a thread of its own.

 

1: Any advise will be tailored specifically to your situation

2: This original thread has had not input since October 2013 and you might get over looked..

 

Hold tight, I will move the post and provide a link for you. BRB

[citizenB]

Beecroft's post has been moved to a thread of its own.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?415793-Re-Subject-Access-SCANDAL-(employment-tribunal)