Can we have the background details please?
Why did you access this and why send to your ex wife?
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?
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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.
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.
If you think that it is going to be useful, by all means use it.
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.
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.
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.
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.
I apologise, I was with a client.
If you tell me what time to call you tomorrow, I will call then.
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..
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.
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.
Just got this. Now or any time after presentation to suit you
any time now or then is fine
You have mail as promised.