Nasty accusations - SAR?

[kaput]

Re: Nasty accusations - SAR?

Hi, yes I have ACAS mediation but only for the unpaid wages. We're treating the UD as a separate matter. Acas say so long as I submit the ET1 before these (absolutely ridiculous and poorly thought out) charges are introduced, then it will be free. I guess I'm lucky things happened when they did as there's no way I could pay £900 or whatever ridiculous amount they're about to charge.

[bluebottle]

Re: Nasty accusations - SAR?

I have come across employers, both as a policeman and since retiring from the force, who allege Blackmail against employees. However, in my experience, they tend to make such allegation out of context, that is, because they don't really understand what one has to do in order for any demand to amount to Blackmail. If they owe you money and do not dispute this, then threatening to go to court, if necessary, is not an unwarranted demand and the threat of court action, in the circumstances, is not an improper means of enforcing the demand.

As Eloise has said, disclosure is, probably, the best way of levering evidence out of your former employers as they will be required to disclose and failure to do so may affect the admissibility of any evidence they withhold and then try and introduce into evidence at any future hearing. However, it is very much down to a judge whether he/she will allow the evidence or rule it inadmissible due to non-compliance with disclosure rules.

[enquirer]

Re: Nasty accusations - SAR?

A former employer of mine has made a number of baseless and untrue accusations. They claim to have a huge body of evidence to support their accusations. Can I use a Subject Access Request to obtain this evidence?

Yes. Do so without delay, and certainly before you begin proceedings or send a Letter before Action.

Try to get them to put everything in writing. Encourage them to lose it - the wilder the allegations, the better. Do not email, do not telephone. If they won't reply, write again - a persistent refusal to reply looks bad in court.

If they are confident that the allegation of blackmail will stand up, then the obvious thing for them to do is to encourage you to sue them. Which, oddly enough, is the one thing their threats are intended to deflect.

Bear in mind that should you sue them for the unpaid wages, you will be able to question the financial solidity of the company in court. In fact, if they are in financial difficulties, you might even consider threatening them with a winding up order.

[kaput]

Re: Nasty accusations - SAR?

Ok, so there are differing opinions as to whether the SAR can be used to get evidence.

I don't think it's a good idea for me to "encourage them to lose it". I don't think it would look good for me if I was seen to be deliberately aggravating them. My best option is to continue writing to them, stick to the facts, and behave in a calm, decent, and lawful way. If they lose it following that (and they already have!) then they're volunteering to jump into the hole they're digging for themselves.

I don't know if they believe in their own blackmail allegation or not. As Eloise says, it was part of a heated exchange. None of what was said in that email was given much consideration by them. It was just blurted out. They certainly went very quiet after I calmly tore apart every word in that message.

I happen to know that today they've been trying their hardest to dig up some kind of dirt on me. In the face of my UD claim, they seem desperate now to come up with any kind of reason for my dismissal. Problem for them is, from my research I've found that the judges don't take kindly to any employer who has not used their disciplinary procedure and given the employee a fair chance to defend themselves against any allegations. I don't think an intelligent judge will buy into any reasons they claim for my dismissal. I have it in writing that they let me go because they decided not to renew my contract. I do not have a fixed term contract. There was no renewal to be made.

[kaput]

Re: Nasty accusations - SAR?

I just read this interesting article on out-law.com:

The next stage is to apply the exemptions. Legal professional privilegeapplies in two areas. Firstly, legal professional privilege attaches to any document which was created with the dominant purpose of being used in current or potential litigation. The document can be created by anybody so long as this was its dominant purpose. The second branch of legal professional privilege attaches to any document which was brought into being in order to obtain legal advice from a barrister or solicitor. This will include documents created by third parties as part of the process of giving or receiving legal advice.

Most of the evidence they claim to have against me must have already existed, for example things such as emails. From my understanding of the above, such items were not created for the primary purpose of being used in litigation, and therefore must be supplied to me.

[bluebottle]

Re: Nasty accusations - SAR?

As stated earlier in this thread, there has been a case where it was ruled that Civil Procedures Rules supersede the Data Protection Act. As Eloise has elicted, your former employers are likely to be bound by disclosure rules which require that they make available to you the evidence they are relying on in their defence.

[kaput]

Re: Nasty accusations - SAR?

As stated earlier in this thread, there has been a case where it was ruled that Civil Procedures Rules supersede the Data Protection Act. As Eloise has elicted, your former employers are likely to be bound by disclosure rules which require that they make available to you the evidence they are relying on in their defence.

I'm not sure I understand you. Would these Civil Procedure Rules be more beneficial to me in light of the documents I would be requesting, or are they a benefit to my former employer as they could use the rules to avoid disclosing the information I want?

There is currently no ongoing litigation between us. I am likely to be the one to initiate it with my UD claim. Their communications would seem to suggest that they will be bringing a separate claim of damages against me.

Do the Civil Procedure Rules apply when there's no litigation?

[bluebottle]

Re: Nasty accusations - SAR?

Civil Procedures Rules apply to civil cases. Their aim is to enable the two sides in a dispute to resolve their differences without going to court, which should be the very last resort. A similar principle applies to employment disputes, but bear in mind that ETs have their own disclosure rules which are similar to CPRs. Eloise will know these particular disclosure rules better than I do. If you intend or have to pursue your employer for non-payment of wages through the civil courts, CPRs will apply and a defendant has no choice but to comply if they don't want their defence to be wrecked by their non-compliance or attempts to ambush the claimant.

[Eloise01]

Re: Nasty accusations - SAR?

Ok, so there are differing opinions as to whether the SAR can be used to get evidence.

I don't think it's a good idea for me to "encourage them to lose it". I don't think it would look good for me if I was seen to be deliberately aggravating them. My best option is to continue writing to them, stick to the facts, and behave in a calm, decent, and lawful way. If they lose it following that (and they already have!) then they're volunteering to jump into the hole they're digging for themselves.

I don't know if they believe in their own blackmail allegation or not. As Eloise says, it was part of a heated exchange. None of what was said in that email was given much consideration by them. It was just blurted out. They certainly went very quiet after I calmly tore apart every word in that message.

I happen to know that today they've been trying their hardest to dig up some kind of dirt on me. In the face of my UD claim, they seem desperate now to come up with any kind of reason for my dismissal. Problem for them is, from my research I've found that the judges don't take kindly to any employer who has not used their disciplinary procedure and given the employee a fair chance to defend themselves against any allegations. I don't think an intelligent judge will buy into any reasons they claim for my dismissal. I have it in writing that they let me go because they decided not to renew my contract. I do not have a fixed term contract. There was no renewal to be made.

Now you are getting it. Your task is to remain cool and focussed. Ignore all else and don't start chasing rabbits down holes.

[wales01man]

Re: Nasty accusations - SAR?

I have been reading this cant offer advice but haxe one question?
is this a large or small company,appears to me to be a smaller company and the company personnel are taking all this to personal with the threats

[enquirer]

Re: Nasty accusations - SAR?

I don't think it's a good idea for me to "encourage them to lose it". I don't think it would look good for me if I was seen to be deliberately aggravating them. My best option is to continue writing to them, stick to the facts, and behave in a calm, decent, and lawful way.

If they lose it following that (and they already have!) then they're volunteering to jump into the hole they're digging for themselves.

Quite - they have already lost it. Their own lack of moderation will be their downfall.

I don't know if they believe in their own blackmail allegation or not. As Eloise says, it was part of a heated exchange. None of what was said in that email was given much consideration by them. It was just blurted out.

It would be unwise to dismiss an allegation of blackmail is something 'just' said in the heat of the moment.

They certainly went very quiet after I calmly tore apart every word in that message.

I happen to know that today they've been trying their hardest to dig up some kind of dirt on me.

The second shows that they are not done, despite the first. Indeed, it appears to be spurring them to even greater unpleasantness.

Problem for them is, from my research I've found that the judges don't take kindly to any employer who has not used their disciplinary procedure and given the employee a fair chance to defend themselves against any allegations. I don't think an intelligent judge will buy into any reasons they claim for my dismissal.

True, but beware complacency.

[kaput]

Re: Nasty accusations - SAR?

I've now come to the understanding that I can pursue my unfair dismissal and unpaid wages claims separately.

My Acas conciliation will be for unpaid wages only.

Therefore I now plan on submitting my ET1 for UD asap. Are there any pre-action protocols that need to be followed for the tribunals service?

[Eloise01]

Re: Nasty accusations - SAR?

Not per se. Assuming you didn't appeal the decision, the employer may ask for a postponement for an appeal to take place, but that would be prompted by the claim anyway. What was your date of termination - I presume that you are definitely within the three months less a day?

[kaput]

Re: Nasty accusations - SAR?

It's arguable as to whether the date was 20th or 28th May. In either case, well within three months.

A more specific question which clarifies why I asked about pre-action protocols, is do I need to send a letter before claim/action?

[Eloise01]

Re: Nasty accusations - SAR?

No - that applies only to cases involving claims of unpaid money