Company disclosed medical condition to my staff

[wales01man]

Re: Company disclosed medical condition to my staff

Have to say SANGIE is offering advice not fighting the you for the other side I would expect the next advice will be consult a Solicitor.

[Jarj]

Re: Company disclosed medical condition to my staff

I do apologise that's not how I meant it to sound, what I meant was there is clearly a lot of knowledge in SANGIE'S comments, and some seem to be a heads up as to what my company are going to say/do, along with were I will stand. I did not mean any offence. My main issue was are my employers in the wrong for disclosing my medical condition, which is considered to be a disability it seems, to my staff and cause me more stress? I think the answer had been yes and I will push the issue back to them.

[R0b]

Re: Company disclosed medical condition to my staff

@Sangie595,

I've not read the following posts by Jarj or yourself in great detail so perhaps my initial stance may change but I thought I would quickly comment on a few things you mentioned in your second post.

You said you factored in constructive dismissal in your post about unfair dismissal and that it is essentially the same form as unfair dismissal. Could you expand what you mean by this as I dont quite understand what you are trying to say? In the eyes of the law, constructive dismissal and unfair dismissal are two separate causes of action, and therefore treated separately - you can't bring them under the same umbrella for the purposes of considering a claim against the employer.

As for constructive dismissal being pretty much impossible to prove, I would not say it is close to impossible but simply difficult for the reason that an employee has to prove a repudiatory breach of contract, hence the difficulties. A breach of mutual trust and confidence which is an implied term, will inevitably result in a repudiatory breach for which the employee can resign and claim constructive dismissal.

Of course we can only decide things based on the information given but it would be unwise to completely rule out a claim for constructive dismissal on the basis of your opinion it is nigh impossible to prove. It is always worth giving all of the possible options as well as the risks and prospects of success than combining causes of action.

You need to tell me something that is evidence - factual, provable information - of your employer doing something illegal or causing you injury or harm. You haven't yet done that. And that would be the absolute minimum requirement for a claim.

This thread seems to have expanded further than what the original post intended. Leaving aside any other issues raised by Jarj and going back to the original question about disclosure of Jarj's personal circumstances, there would appear to be a breach of data protection for which Jarj would have an eligible claim in the county court (not the ET).

So there would seem to be a viable claim for breach of data protection at least and as I have pointed out, potentially a claim for constructive dismissal if it can be shown that the facts and circumstances of the disclosure to employees of the business has caused a breakdown of trust and confidence.

[Sangie595]

Re: Company disclosed medical condition to my staff

I do apologise that's not how I meant it to sound, what I meant was there is clearly a lot of knowledge in SANGIE'S comments, and some seem to be a heads up as to what my company are going to say/do, along with were I will stand. I did not mean any offence. My main issue was are my employers in the wrong for disclosing my medical condition, which is considered to be a disability it seems, to my staff and cause me more stress? I think the answer had been yes and I will push the issue back to them.

Please rest assured that I haven't taken any offence at all. I totally understand how distressing this is. You are quite correct in that I am giving you a realistic response rather than telling you something you might want to hear.

You quite certainly, after a few weeks off sick, do not have a disability in law. Forget that. The definition of a disability is that it must have lasted, or be expected to last, at least 12 months, and must have a substantial impact on your day to day life. You aren't there yet. And as someone who is (physical disability) I would hope you never will be.

Going back to the keystone issue you raised, yes, you can complain about the disclosure, but I honestly don't think this is a repudiatory breach in itself. It is a serious mistake, but there is no evidence that it was an intentional act. Or that it has happened to anyone else. So it depends what "in the wrong" means to you. No it shouldn't have happened, and yes, they should ensure that data is better protected and used. But beyond that, it is a weak claim in terms of what you might be able to do about it.

[Sangie595]

Re: Company disclosed medical condition to my staff

@Sangie595,

I've not read the following posts by Jarj or yourself in great detail so perhaps my initial stance may change but I thought I would quickly comment on a few things you mentioned in your second post.I am not sure that this is the place to engage in a discussion, and when posting I prefer to base my opinions on the full information, so I do read the whole thread. Since things have moved on quite a bit, it does inform the situation.

You said you factored in constructive dismissal in your post about unfair dismissal and that it is essentially the same form as unfair dismissal. Could you expand what you mean by this as I dont quite understand what you are trying to say? In the eyes of the law, constructive dismissal and unfair dismissal are two separate causes of action, and therefore treated separately - you can't bring them under the same umbrella for the purposes of considering a claim against the employer. In technical detail, yes, constructive dismissal stands as a point of law on its own, but it is rarely brought as a single claim, and so actually yes, it can and usually is brought under the same umbrella when making a claim against the employer. Indeed, the most commonly used case law on this point, Savoia v Chiltern Herb Farms Ltd [1982] IRLR 166, makes this argument - it is difficult to envisage many situations in which an employer can breach ERA96 s98 - the definition of unfair dismissal - whilst also being fair. The claim most commonly heard now being "constructive unfair dismissal" in that the claim is brought and heard as a constructive dismissal and an unfair dismissal.

As for constructive dismissal being pretty much impossible to prove, I would not say it is close to impossible but simply difficult for the reason that an employee has to prove a repudiatory breach of contract, hence the difficulties. A breach of mutual trust and confidence which is an implied term, will inevitably result in a repudiatory breach for which the employee can resign and claim constructive dismissal. I would consider a success rate of less than 1% to be close to impossible. Perhaps you have a different definition?

Of course we can only decide things based on the information given but it would be unwise to completely rule out a claim for constructive dismissal on the basis of your opinion it is nigh impossible to prove. It is always worth giving all of the possible options as well as the risks and prospects of success than combining causes of action. I agree. Which is why my opinion was based on the facts the OP gave. They had - and they have subsequently re-confirmed this - a whole list of complaints which they had never raised as grievances or in any serious way. Mentioning things to your manager which they don't act on is not a repudiatory breach. Working a lot of hours voluntarily (because if the OP didn't say no, then they agreed) is not a repudiatory breach. Making a mistake and sending an email to the staff with an attachment stating the sickness cause is a serious mistake - but there is no intent proven. So it is questionable whether it could be deemed a repudiatory breach since people can and do make mistakes. And, in fact, the most serious errors here include the OP's staff - who, having erroneously received this information, should have known better than to discuss it and discuss it with clients! The employer had a right to expect better behaviour from them too.


This thread seems to have expanded further than what the original post intended. Leaving aside any other issues raised by Jarj and going back to the original question about disclosure of Jarj's personal circumstances, there would appear to be a breach of data protection for which Jarj would have an eligible claim in the county court (not the ET).As I stated, this is not an area of law which I am required to be familiar with, but as you stated - it isn't worth much. Whether the OP wishes to trade their job for a small compensatory award is not something they appear to be interested in. But if they are, they would need to take advice on that specific aspect to ascertain the likely value of such a claim to them. The original post was clear that the OP was saying they didn't want to stay in their job, and that was the purpose of their enquiry. That was the point I addressed - did they have a claim for the loss of their employment?

So there would seem to be a viable claim for breach of data protection at least and as I have pointed out, potentially a claim for constructive dismissal if it can be shown that the facts and circumstances of the disclosure to employees of the business has caused a breakdown of trust and confidence.

Even with substantially more information than originally available, I cannot see sufficient evidenced grounds to suggest a repudiatory breach, either in statutory or common law. I maintain my position that it is seriously risky for the OP to consider constructive dismissal, and, as I suggested, if they are even entertaining such a notion, the legal advice is an absolute must. And I repeat my suggestion that the legal advice is tested realistically - there are lawyers who will be happy to take your money when you may have little prospect of winning. By no means the majority, but nobody knows the type until after it is too late.

[R0b]

Re: Company disclosed medical condition to my staff

I would consider a success rate of less than 1% to be close to impossible. Perhaps you have a different definition?

i'd love to see your statistics or information on that I am making the assumption that the less than 1% is based on the actual claims that reach conclusion at a tribunal hearing (given that around 15% of claims only reach a final hearing and perhaps lower since the introduction of high fees to bring a claim) and not those which are settled / withdrawn.

My point about unfair dismissal and constructive is that they are not essentially the same, in fact they are very different legally. Yes you can bring a claim for both constructive and unfair dismissal under one claim but the criteria and tests are substantially different to warrant them not being essentially the same.

One thing I do agree with you is there does not appear to be a justification for unfair dismissal but that does not rule out any potential claim for constructive dismissal. As already said, the difficulty fr such claims is proving the fundamental breach however, as you have acknowledged, breaching confidentiality and data protection is a serious one, there's not a need to simply prove intention of it. If the breach is likely to destroy or seriously damage the trust and confidence between the employer and the employee, regardless of whether it was intended to do so, a fundamental breach will have occurred. Emailing other colleagues working under Jarj about the personal circumstances which, no doubt was said in confidence, and who then filter that down to Jarj's customers, is arguably a breach. Then that may work in favour of Jarj. It is doubtful that the employer can discharge any breach simply because the employees should have known better when it was the employer who brought about the breach. it is not clear as to whether or not the employer did anything to mitigate the issue, such as recalling the email or informing employees not to disclose the information etc but if nothing was done, then that could work in favour of Jarj.

Of course I think another question which I am not sure has been answered (unless I've missed it) is how long ago the breach occurred. Obviously if Jarj is working more hours voluntarily since the breach then that will certainly undermine any claim for constructive dismissal as well as the length of time Jarj stays in employment before deciding to resign.

As for any civil claim for breach of data protection, it is usual for other allegations to be put forward at the same time such as misuse of private information and breach of confidence. Since the claim is a civil tort, it would have no effect on you as regards to your employment status and you can carry on working there (though I appreciate you have said you don't want to), however in practice claiming against an employer and then continuing to work there can be very difficult and can cause even more stress and pressure, and I have known some to have been pushed out eventually as a result.

Repeating what has already been said, before any claim is made, legal advice should be sought and if possible, more than one consultation because, in the case of lawyers, each one will have a different view of things and prospects of success.

[Jarj]

Re: Company disclosed medical condition to my staff

You quite certainly, after a few weeks off sick, do not have a disability in law. Forget that. The definition of a disability is that it must have lasted, or be expected to last, at least 12 months, and must have a substantial impact on your day to day life. You aren't there yet. And as someone who is (physical disability) I would hope you never will be.

[Jarj]

Re: Company disclosed medical condition to my staff

Sorry what I meant was is that I have been told my symptoms are that of anxiety and depression brought on by stress, I have been placed on medication. I am continuing to go to work simply because I have to, I have a family to support. It is one of the worst situations I have been in and the sooner I can get out the better, a job I loved and thrived and excelled at is now the worst place I can be at the minute. I get so low when I know I've got to go, I can't sleep in two months I've lost nearly two stone, these are not things I've ever experienced before and hope never to again, I'm someone who is always reluctant to take pain killers so to end up in pills to be able to continue to do a job I now know that a) my promotion which was so close will probably never happen. B) had had all the enjoyment ripped out of it, is just not conducive of a healthy or enjoyable working environment.

[Jarj]

Re: Company disclosed medical condition to my staff

As far as I was aware residing issues informally first was the way to go, which is what I've done on many occasions with either the promise of change, support or and apology.
The latest events which I have complained officially about as enough was enough, began just before the festive season and I am still working but my rota hours as I thought best to at least see it the grievance procedure first. As I have said part of my grievance was the data breach which has been upheld, admitted, and I am now at the appeal stage to ensure the rest is upheld. That have most definitely lost my trust and confidence totally and being around similar events in my career I know for a fact that I will be " gone after" in some shape or form, so if my career is basically stored in its tracks for no fault of my own besides using a grievance policy which I am entitled to do, then why should I or would anyone want to continue to work for the company? I see it, and I may be wrong, they have caused an event which leads me to no longer want to stay under their employ this is not my fault but it is me that is going to be out of a job I loved, have done well in and was verging on promotion not only is it not fair it's not my fault yet I'll be the one losing out. I think they know they are due bother from my direction, even the grievance procedure itself was full of flaws e.g. I have evidence of poor performance from my manager and evidence to prove things I have said not once have I been asked for any. I also raised issues of work load, hours etc and not even a response, literal silence and next question. The meeting was carried out as an investigation against me not a fair,unbiased meeting to fact find and resolve my manager has been given opportunity for all of the above, in fact, all the texts emails etc I have too but he has shown and only sections used in his evidence to look like it is how he says it is when clearly reading in full you would see otherwise. It's clearly been about protecting themselves and one of theirs, and in my opinion not the purpose of a grievance policy or facilitating one.
This has only worsened the situation and had they simply excepted fault and dealt with issues as apposed to lying I may be more reluctant to walk away and have my faith restored. But now they seem to have turned my complaint into me Vs them! Not the point at all!

[Jarj]

Re: Company disclosed medical condition to my staff

Another question, my company keep insisting I provide a resolution I understand this may be usual but I really don't know how they can resolve I tell them this yet this insist that I must provide one, is this right? If so what do I suggest? I see it as pretty pointless as me saying manage my manager accordingly as a junior member of staff would be for under performance or dismiss the person responsible for disclosing my personal information as it is most definitely gross misconduct, is not going to sit well or even be taken into consideration.

[Sangie595]

Re: Company disclosed medical condition to my staff

Another question, my company keep insisting I provide a resolution I understand this may be usual but I really don't know how they can resolve I tell them this yet this insist that I must provide one, is this right? If so what do I suggest? I see it as pretty pointless as me saying manage my manager accordingly as a junior member of staff would be for under performance or dismiss the person responsible for disclosing my personal information as it is most definitely gross misconduct, is not going to sit well or even be taken into consideration.

It is quite common for the employer to ask "what you would like to see happen". Demanding dismissal is not going to get you anywhere, and nor is demanding performance management processes. The fact is that if they intended to do either of these things, they would have done them.

If you are quite certain that this is the route that you want to go down, then this is the point where you say that you have lost all trust and confidence in your employer and want a settlement agreement. Obviously, once that is said it cannot be unsaid, and if they refuse, which they may, then your lack of trust and confidence becomes the permanent elephant in the room. On the other hand they may make you an offer or ask you how much you want. What would your response be?



In relation to your other posts - I could have guessed what the doctor diagnosed! But it still isn't a disability yet, and, as I said, I hope it never will be. And I think that you have to accept that the culture of the organisation is such that it is clear a grievance will only result in conflict. Unfortunately that is often the case. But if you think about it, it's kind of obvious that it would - any organisation with the opposing culture would seek to settle problems quickly and smoothly, so any remaining grievances would be of a nature that cannot be resolved (or which are unreasonable - believe me, we do see them too).

[Jarj]

Re: Company disclosed medical condition to my staff

I too hope it isnt and it's depressing enough having to resort to pills to carry out your job and just feel more normal! Not a position I intend to stay in.
I wouldn't dream of suggesting these things for this very reason, but in reality if it were my staff behaved in these ways then that is most definitely the route I'd be going down, again one rule for one etc.
What do you suggest re: Resolution? Or is the settlement the resolution you are suggesting? I wouldn't have a clue were to start with regards to an amount.
It probably is often the case and it is certainly unfortunate, were it an open and honest business then I dare say less things would be raised to grievance as you have said. A process which is in place to protect and better the company as a whole is turned against those who use it it doesn't even make good business sense to me.
Googled settlement and In all honesty this route would be preferable to me, it means a clean break no one slating the other a decent reference and a sum to allow me time to breath and secure new employment, it's disappointing for me to actually be facing walking away from a job I've put a lot of my life into, made sacrifices and have really done my best and more disappointing that the company that sees fit now to treat me like this recognises all of the above I.e. very good appraisals good pay increases etc. Shame really.

[Sangie595]

Re: Company disclosed medical condition to my staff

Ok. Do you know what redundancy would be for you? My view is that that would be the bottom line - the absolute minimum that you would accept. Tell me two things. What is that redundancy figure? Include things like notice periods etc. Then tell me, with benefits, what is your monthly salary worth.

[Jarj]

Re: Company disclosed medical condition to my staff

Well that was a shock, I had to use direct gov website and apparently my redundancy would be just short of 2.5k.
I would have to give the company 1 month's notice and my salary is £2850pmth. I do get shares regularly and have some in a scheme which can only be sold after so many years.

- - - Updated - - -

Sorry not sure if any pension contributions should be included in that.

[Jarj]

Re: Company disclosed medical condition to my staff

I have just out of curiosity googled settlement agreement and low and behold a calculator or two, again not really pinning my hopes on these was simply curiosity but both I used ranged from 15-17k, any idea why such a massive difference to the gov redundancy pay? I know which one I'd rather have!