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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 8972
Experience:  I have been practising for 30 years.
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An organisation I work for is a care organisation and as

Customer Question

An organisation I work for is a care organisation and as such has a list of clients on their computer. One day I found my daughter's details on their list so I opened her details and informed my ex-wife about it. My ex-wife had it removed then I am invited to a discplinary hearing because I accessed my daughter's details without permission.
Submitted: 7 months ago.
Category: Law
Expert:  F E Smith replied 7 months ago.

Can we have the background details please?

Customer: replied 7 months ago.
What background details?
Expert:  F E Smith replied 7 months ago.

Why did you access this and why send to your ex wife?

Customer: replied 7 months ago.
Because I was surprised to see my 9 year old daughter's details on computer.
Customer: replied 7 months ago.
I need to go now and I will be back online tonight.
Expert:  F E Smith replied 7 months ago.

Thank you. There at least a couple of statutory breaches here.

You are in breach of the Computer Misuse Act (which is a criminal offence) for accessing the computer or that section of the computer if you did not have the authority to do so. It seems unlikely that you would have the authority to access your daughter’s records.

It is also a breach of the Data Protection Act for passing that data on to a third party regardless of the identity of that third party and regardless of the reason. If you felt that your ex-wife needed this record for something, the correct way of dealing with this would have been to get the consent of whoever owns the record or, make a section 7 Data Protection Act Subject Access Request on behalf of your daughter to have the information made available to you. There is a statutory fee of £10 that you must pay and they have 40 days to let you have the data. Then, you can do with the data as you wish.

I do not know how your ex-wife managed to get it removed but if she access the computer, then she is guilty of the same statutory breaches.

From an employer’s point of view they will treat this as misconduct and even potentially gross misconduct.

If you worked for the police or the Inland Revenue, this is potentially gross misconduct and would usually lead to summary dismissal.

I know it isn’t the answer you wanted that is the situation.

Can I clarify anything else for you?

Please rate the service positive. It is an important part of the process by which experts get paid. It does not cost you anything but helps us greatly.

Best wishes.

FES

F E Smith, Advocate
Category: Law
Satisfied Customers: 8972
Experience: I have been practising for 30 years.
F E Smith and 3 other Law Specialists are ready to help you
Customer: replied 7 months ago.
Hello,Thank you very much for a clear explanation of the situation. I can now see why my employer is inviting me to a disciplinary hearing. I felt I was within my rights as a father but your explanation clearly says I have no right at all and I know ignorance of the policy is not an excuse.However I have copied and pasted the following email from my manager;"Can I please apologies that your Daughter’s name was in view on Charity Log, apparently this should not be the case and we should not be able to see any clients records unless we have worked with them, this error has now been rectified and I have looked to see if this is the case and L’s records are no longer there to be viewed.Again I sincerely ***** ***** this has caused you any distress.Just for your information, it is our policy that if any member of staff accesses the details of someone they know and they do not have any reason to do so ( which means they are not working on that case) then it is a sack able offence as it is classed as Gross Misconduct."So I would be grateful if you can advise me what I can do in my defence?In the invitation letter it says one of the outcomes may be a written warning. I hope it will come to that and not Gross Misconduct.Thank youRichard
Customer: replied 7 months ago.
Will I get an answer to my latest question?My ex-wife reported this to the employer as she works for same organisation.Richard
Expert:  F E Smith replied 7 months ago.

I’m sorry for the delay. I have been away for a couple of hours.

I can understand how you felt as a father and I don’t think you could be criticised emotionally for that action but unfortunately, it is the illegality of it. I think you would be very harsh of the employer if they were to dismiss you over it however.

With regard to the email from your manager, they have breached client confidentiality and probably the data protection act themselves although 2 breaches do not cancel each other out.

If they decide to dismiss you for gross misconduct which they are potentially able to do, you would need to tell them that if they follow that course of action, you will have no option but to report them to whoever regulates them for breach of client confidentiality and to the Information Commissioner for making the information available to the rank and file and breaching the Data Protection themselves.

It seems that by mentioning this to your ex-wife, with a view to having it removed you have inadvertently shot yourself in the foot unless of course your ex-wife did this intentionally to land you in it. She may have landed you in it inadvertently.

If they do dismiss you for gross misconduct, I think you have a potential defence in that you were safeguarding the confidentiality of your daughter. It would be to you however to take the matter to a tribunal if it came to that.

Customer: replied 7 months ago.
Excellent and just excellent.Thank you very much for very clear and concise explanation of the situation.My ex-wife (mother of my daughter) is very supportive and she is one of Senior Support Staff there hence easier to inform her rather than direct to the supervisor. With hindsight and from your clear explanation of the laws, I should have not clicked on my daughter's details and just reported it straightaway.Also thank you for your last comments saying I have a defence should it go to Tribunal however the invitation letter mentioned misconduct and one of the outcomes could be a written warning which I suppose is better than Gross Misconduct or could they still decide on Gross Misconduct after the hearing?
Expert:  F E Smith replied 7 months ago.

I was pleased to help.

Hindsight analysis is absolutely correct. In fact, you could have been the one making the complaint then.

I think under these circumstances, it’s rather academic whether it’s conduct or gross misconduct provided they decide not to dismiss you. You might want to agree that whatever title they put on it, but it will be mentioned in any reference if ever you leave to go somewhere else. If not, under these circumstances, you might want to file a grievance. Put the boot on the other foot. After all, you wouldn’t be in this situation if it wasn’t for someone’s incompetence. Their fault.

If they do dismiss you, because of the circumstances being relatively unique, I think they would fail in the tribunal.

It would have been different if you had gone seeking out this information but it puts a whole new slant on it when it was actually sitting there staring you in the face and you are simply “investigating” why your daughter’s name was on view to and sundry.

Customer: replied 7 months ago.
Perfect so shall I use the email from my manager as evidence in the hearing?
Expert:  F E Smith replied 7 months ago.

If you think that it is going to be useful, by all means use it.

Customer: replied 7 months ago.
okay and thank you. Sorry to be bombarding you with all the questions, I hope I am paying you enough.So should I file a grievance now or wait until after the hearing?Am I wrong to hope for verbal warning or is written warning inevitable? It would be first time for me at the age of 55!Thank you.
Expert:  F E Smith replied 7 months ago.

I am pleased to help. There is the facility to offer a discretionary bonus which is always appreciated but that decision is entirely up to you.

To be honest, you are between a rock and a hard place when it comes to filing the grievance before or afterwards. If you file it afterwards, they will say that you’ve already done it because you lost.

This is one of those where it’s a toss up between before or after and I think it’s better if you raise the complaint prior to the hearing, not with the grievance as to how this has been dealt with but a complaint as to how your daughters information was not kept private. I suppose it’s a little bit of the best form of defence being attack. After all, they seem to be making you the scapegoating this whereas in actual fact, you should not have been able to access this. As I said earlier, you did not go searching for this, it simply popped up.

It may be that they are just going through the paper exercise with the disciplinary so that they have something on paper so that they can be seen to be doing the right thing. However only you will have an indication of whether that is the case or not and even if it is the case, it doesn’t get round the fact that someone on their side screwed up.

You can use refuse to accept the written warning although to be honest it’s probably going to of little consequence. You would need to look at employees manual and the effects of a written warning to see whether it concerns you are not.

The difference between the written warning and verbal warning is not a statutory issue, it is only relative to whatever the internal procedure is.

Customer: replied 7 months ago.
Thank you and it is a delicate situation. Another defence is that the data protection policy doesn't mention family?
Expert:  F E Smith replied 7 months ago.

I don’t think that one holds water, but by all means throw it in.I think it extremely important that they differentiate between stuff which you just happen across and stuff which you go digging for which obviously doesn’t apply here.

Expert:  F E Smith replied 7 months ago.

Let me use a slightly different example.

You come across this document relating to your daughter and it’s lying in a gutter in the street.

You pick it up and give it to your wife who works for the same organisation and she deals with it.

They then seek to discipline you for having this information which is in breach of the data protection act.

It would be ludicrous.

Your situation is exactly the same, it is just a matter of scale and degree.

Customer: replied 7 months ago.
Right I have it clear so thank you.I would like to call you through an interpreter as I am deaf are you available?
Expert:  F E Smith replied 7 months ago.

I am happy to talk through third party. Presumably, you would need the same at the hearing.

There is an extra cost for telephone calls called a Premium Service and I will submit that for you now. You can accept it or leave it in abeyance for the future. I would be happy to speak at any time provided I know when you are available.

Customer: replied 7 months ago.
What happens now?
Customer: replied 7 months ago.
I need to leave 5.10 at the latest
Customer: replied 7 months ago.
How do I contact you? or you contact me?
Customer: replied 7 months ago.
I have to leave now and can we talk through telephone tomorrow afternoon please.
Expert:  F E Smith replied 7 months ago.

I apologise, I was with a client.

If you tell me what time to call you tomorrow, I will call then.

Customer: replied 7 months ago.
That is ok and I think it will be 2pm and I will confirm tomorrow.Let me use an example. If I am standing on a train platform and I see someone on opposite platform about to faint and fall onto the track. I jumped onto the track ran across and got up on opposite platform to save that person from falling onto the tracks. I would be praised for saving that person's life yet penalised (fined) for running onto the track.So tomorrow phone call I would be grateful if we can discuss my options and what evidence/tactics to use to defend myself please?What I plan to do is just use that email from manager to say that my daughter's details should not be on the database therefore she is not in fact a client as they make her out to be. I think that may be my only option?I am not clear on how to 'accuse' them of breaching their own confidentiality by exposing my daughter's details (and many other clients). I am having this hearing because I 'clicked' on my daughter details and reported it. I am sure many staff have done the same by mistake and said nothing because when I type 'Jones' there are about 20 names, address, date of birth, etc in full view but I am authorised to 'click' only on my tenant. I could easily write down all the details without anyone knowing.So in my argument I could say their system is flawed?Thanks so much.
Expert:  F E Smith replied 7 months ago.

An interesting point and a very valid one.

Nonetheless, on a strict liability basis you are trespassing on railway without authority.

Incidentally, in the same circumstances, if you are injured trying to rescue someone, you have no claim against them. The legal maxim is Volenti non fit injuria. Willing person, no injuries done. I am moving of the subject.

Back to you:

I think your best form of defence is going to be attack. It was their negligence and breach of confidentiality put you in the situation where you had no option but to protect her daughter’s privacy. They should be apologising to you. If your daughters details the database, then that’s even worse! They should be apologising even further.

I think their system is potentially flawed but even the most perfect of systems falls down if people either leave it to put information in their leave it exposed and it shouldn’t be.

We can speak tomorrow at 2 PM whatever time suits you..

Customer: replied 7 months ago.
Thank you very much. I have to respond by 12 noon on Friday to accept the invitation to the hearing so I look forward to your advice.I will call you on your mobile ok.Best wishesRichardPS I could email Quality Systems Officer who deals with the database or CEO who is also Data Protection Officer to ask questions about the system?
Expert:  F E Smith replied 7 months ago.

Remember that you are entitled to a have a work colleague union representative at that disciplinary meeting as well as your interpreter.

You could email the Data Controller to ask how this could have done wrong and what the ramifications are of any breach.

Customer: replied 7 months ago.
okay, I think better we chat tomorrow. In the investigation hearing I was not informed what it was about apart from the fact that I accessed the database without authorisation so I did not have opportunity to show the Data Controller (who is also the CEO) that email from my manager.When you say I need to go on the attack, do you mean attack now or at the hearing?
Expert:  F E Smith replied 7 months ago.

I think you need to be firmly offensive rather than aggressive prior to and at the hearing. After all, if it wasn’t for their mistake, this wouldn’t have happened.

Customer: replied 7 months ago.
Hello, can I call you at 1.30pm please? If that is not convenient then please let me know what time is convenient for you apart from 2pm as someone is leaving and we have a presentation which should take about 15 mins. Thanks
Expert:  F E Smith replied 7 months ago.

Just got this. Now or any time after presentation to suit you

Customer: replied 7 months ago.
2pm ok as the presentation was done earlier than agreed.
Expert:  F E Smith replied 7 months ago.

any time now or then is fine

Expert:  F E Smith replied 7 months ago.

You have mail as promised.

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