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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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I am taking my ex employer to an employment tribunal for constructive

Resolved Question:

I am taking my ex employer to an employment tribunal for constructive dismissal. they treated me badly - i had a breakdown (7 weeks off sick). I was looking for another job whilst off sick. they have managed to retrieve from my personal mobile phone some private text messages relating to a new job i was considering. (I had plugged in my mobile to my then work laptop to charge and they have some how managed to retrieve all my text messages - i didnt know that could be done)
my ex employer is trying to use these private text messages against me at the tribunal. they have identified that the phone clearly stated 'personal phone'. I also had a work mobile and I know that anything they find as evidence will be used from this but my question is: can anything found on a personal device be used against me. also these messages were also mostly out of office hours/weekends/holidays.
Submitted: 3 years ago.
Category: Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.

Ben Jones :

How did they gain access to your personal phone?

Customer:

i did explain. I had plugged in my personal phone into my then company laptop to charge. they had a forensic computer wizzkid somehow retrieve the text messages.. i didnt know that was possible. i know documents like letters, emails etc can be retrieved if deleted but i didnt know that text messages were stored anywhere on a laptop.

Ben Jones :

have you already made the claim in the tribunal?

Customer:

yes. we are at the providing evidence stage. my ex employer is listing a load of text messages as their evidence.

Ben Jones :

ok thanks, XXXXX XXXXX with me please, I am just travelling so as soon as I get back I will get my response ready and get back to you on here early this evening

Customer:

ok - thanks.

Customer:

just a bit more background on my case for you to consider: I was originally one of 3 who set the company up (initially trading from my home for first 12 months). everything was fine to start with but in April 2013, I started noticing that I was not being included in emails (where previously I had). at first thought i was just being paranoid but soon realised that something was 'going on behind my back' (still dont know why) but this came as a complete shock to me. i had anxiety attacks, put on Vallium, was in therapy and had a breakdown. whilst on sick leave for 7 weeks, i was keeping my eyes open for alternative work. i am single mum 3 kids so needed work. i felt i couldnt return to work but as i hadnt found alternative employment, i returned to my employer and tried to ignore what was going on behind my back. i have email evidence and am confident about my claim. i did eventually leave them on 30th sept 2013 after receiving an email from someone who had been for an interview (for my then job!) whilst i was still employed by them. that was the icing on the cake so to speak. i knew that i could not stay there anymore and my health was being seriously affected still. i left without giving my required notice (6 months) and currently out of work and on jobseekers, representing myself in court. my restrictive covenants prevent me from working in the same industry for 6 months and i am struggling to find work in a different industry without the relevant industry experience. i have been in the same industry for 25 years.

Ben Jones :

Many thanks for your patience. The employer’s actions of accessing your personal details on your phone, such as messages, etc would most likely amount to a breach of data protection regulations. There is also a potential human rights issue as they would be invading you privacy in that way.


 


Whilst an employer could potentially monitor personal data, such as devise they have access to, they must inform the employee that they are doing so, define the purposes for which this is done and ensure that they only carry out the monitoring in a fair and reasonable manner and for the purposes that were initially drawn up.


 


If a party has acted in contravention of the Data Protection Act 1998 (DPA), then anyone who has suffered damage or distress as a result can potentially make a claim.


 


The first step is to report the alleged contravention to the Information Commissioner’s Office. They are the regulatory body that deals with breaches of data protection regulations and can investigate and fine the infringing party. However they will not award compensation to the victim so the only way to try and get any compensation is by going through court.


 


If the victim has only suffered distress and no financial damages, compensation is not available unless the breach related to the “special purposes” which means it was related to the processing of artistic, literary or journalistic information. Any other breaches will not qualify and this will unfortunately include your case here.


 


Therefore whilst you may not expect any compensation, you can contact the tribunal to object to the use of this personal data as evidence. Write to them, highlight the specific evidence you dispute and the reasons for doing so, making it clear how they obtained the data. The best you can do is bring this to the attention of the tribunal and be clear on the methods they used to achieve this, it would then be for the tribunal to make a decision on whether to allow this as admissible evidence or strike it out from the claim.

Ben Jones :

Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? Thanks

Customer:

thanks for your response. the respondent at this stage has listed 'a variety of text messages from her personal phone' but hasnt given any further details. i would rather see if at this stage i could get the tribunal to dismiss any personal text messages without asking the respondent to provide the full details of the text messages as i know there will be info about my new job in those text messages and do not want these revealing to the court as this court sway the judge to allow them to be used as evidence. do you suggest i write to the court at this stage or follow the Case Management Orders and allow the respndent to submit their evidence including these personal text messages then as part of my defence object to the use of the personal texts..?

Ben Jones :

Hello, you would be entitled to see all documents and evidence they will use before the hearing. So even though they have just listed the evidence generally, you must be able to see it all before the hearing and at that stage you can make a decision on whether it is something you wish to object to. The exchange of documents will only really be a process between you and the employer - the tribunal will not really get to see these until the day of the hearing, so even if you continue with the exchange now, it is unlikely the tribunal will be influenced by them. In the meantime you can make an applicaiton for the removal of any evidence you do not wish included

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