Data Protection/Disciplinary query

[lawson77]

Totally new to the site so please excuse me if i'm not posting this correctly. I'm hoping to get some advice for my boyfriend. He works as a driver for Stagecoach as a bus driver. A few weeks he was involved in a collision with a car, he did not stray out of his lane at any point, the car veered into his lane he could not brake in time and hit the car. CCTV on the bus confirms he never left his lane etc. Yesterday he was given a letter saying he must attend a disciplinary hearing over the collision and that he may be fired over it. As a law student i suggested he ask them for a copy of the cctv under the data protection act and get some independent legal advice before his hearing and i wrote a letter for him to give to work to that effect. He received a letter back from them today saying that as it is an internal disciplinary they are not bound by data protection to supply him a copy of the cctv but that he can view it and that if he wishes to get legal advice he can ask the company's legal department. i was under the impression that data protection applied to any individual irrespective of whether you are an employee or not and that seeking independent legal advice is a right. Any help or advice would be hugely appreciated, his hearing is tomorrow!!!!

[Kati]

Re: Data Protection/Disciplinary query

[MENTION=19071]teaboy2[/MENTION] might be able to help you out here I've given him a nudge for you!

Welcome to LB by the way xx

[stevemLS]

Re: Data Protection/Disciplinary query

He can, of course, take independent legal advice, he is unlikely to be permitted legal representation at the hearing if that is what he wanted.

You are right, any individual can access information about them using the DPA - assuming the bus CCTV is "outward" facing, which it must be if it can see that he didn't stray out of the lane, rather than being fixed on the driver, then it is not "his data" and so he has no right of access.

Has there been an investigation meeting where he has had his opportunity to counter what is being said, or have they moved straight to a disciplinary hearing?

I am certainly aware that one bus company disciplines every driver involved in an RTA as a matter of course, those that were not at fault didn't have any further action taken against them. Not a terribly bright position to take if you ask me.

[lawson77]

Re: Data Protection/Disciplinary query

He can, of course, take independent legal advice, he is unlikely to be permitted legal representation at the hearing if that is what he wanted.

You are right, any individual can access information about them using the DPA - assuming the bus CCTV is "outward" facing, which it must be if it can see that he didn't stray out of the lane, rather than being fixed on the driver, then it is not "his data" and so he has no right of access.

Has there been an investigation meeting where he has had his opportunity to counter what is being said, or have they moved straight to a disciplinary hearing?

I am certainly aware that one bus company disciplines every driver involved in an RTA as a matter of course, those that were not at fault didn't have any further action taken against them. Not a terribly bright position to take if you ask me.

thank you for your help, in answer to your questions....
-he does not want to take a legal rep into the hearing with him as he has a union rep who can attend with him but he wanted to just get some advice to know where he stands before going into the hearing.
-the CCTV shows both the road AND himself as the driver, does that make a difference?
-no investigation has been made before this, he filled out an accident report on the day of the collision, as he has done in previous accidents and didn't hear anything more until yesterday when he was issued with the letter saying he had to attend a disciplinary hearing on june 4th which states 'at this meeting the question of disciplinary action against you, in accordance with the company disciplinary procedure will be considered...i must advise you that subject to discussions held at this meeting, a decision could be taken up to and including dismissal'.
-the letter he received today says 'as an internal disciplinary hearing is not a legal matter there is no requirement for us to supply a copy of the footage.'

[happylife]

Re: Data Protection/Disciplinary query

In the disciplinary hearing letter were any allegations mentioned ?

[stevemLS]

Re: Data Protection/Disciplinary query

Has he got a copy of the disciplinary procedure?

Maybe if there are more than a specified number of collisions in a given period they consider disciplinary action.

Am I imagining that the CCTV is some sort of split screen thing showing multiple cameras one of which is the driver?

If that is the case then if he is (one of) the primary subjects then I think they ARE obliged to supply a copy. He needs to submit a formal written request "in accordance with Section 7 of the Data Protection At 1998" and enclose a cheque for the statutory fee of Ł10.

That is part of their obligation as a data controller - the purpose for which the subject requires it is immaterial. It is naff all to do with whether it is an internal process or not.

With the letter asking him to attend the meeting, is there any evidence on which they intend to rely? If not, it sounds as though it is an investigatory meeting although the extract you quote makes it sound as though they are trying to combine the two - which I guess is theoretically possible but he is entitled to know the case against him in order to give him opportunity to defend.

If he believes the CCTV is critical to his defence, he should "request", in writing, that they adjourn the meeting/hearing until such time as they have complied with their obligations under the DPA. They have a max of 40 days to respond so will probably be unwilling to adjourn for so long, but so long as it is in writing that he believes he cannot prepare properly without that footage, it won't look good for the employer if they decline. In the request he needs to refer to their previous refusal to supply it, emphasise how he believes he cannot properly conduct his case without it and refer to the formal subject access request he has submitted (as mentioned earlier).

Good luck.

[lawson77]

Re: Data Protection/Disciplinary query

In the disciplinary hearing letter were any allegations mentioned ?

no, none mentioned. pretty much just what i quoted previously. tomorrow's hearing is noted as a stage 1 hearing.

[lawson77]

Re: Data Protection/Disciplinary query

Has he got a copy of the disciplinary procedure?

Maybe if there are more than a specified number of collisions in a given period they consider disciplinary action.

Am I imagining that the CCTV is some sort of split screen thing showing multiple cameras one of which is the driver?

If that is the case then if he is (one of) the primary subjects then I think they ARE obliged to supply a copy. He needs to submit a formal written request "in accordance with Section 7 of the Data Protection At 1998" and enclose a cheque for the statutory fee of Ł10.

That is part of their obligation as a data controller - the purpose for which the subject requires it is immaterial. It is naff all to do with whether it is an internal process or not.

With the letter asking him to attend the meeting, is there any evidence on which they intend to rely? If not, it sounds as though it is an investigatory meeting although the extract you quote makes it sound as though they are trying to combine the two - which I guess is theoretically possible but he is entitled to know the case against him in order to give him opportunity to defend.

If he believes the CCTV is critical to his defence, he should "request", in writing, that they adjourn the meeting/hearing until such time as they have complied with their obligations under the DPA. They have a max of 40 days to respond so will probably be unwilling to adjourn for so long, but so long as it is in writing that he believes he cannot prepare properly without that footage, it won't look good for the employer if they decline. In the request he needs to refer to their previous refusal to supply it, emphasise how he believes he cannot properly conduct his case without it and refer to the formal subject access request he has submitted (as mentioned earlier).

Good luck.

-no, he doesn't have a copy of the disciplinary procedure. should he ask for one?
-as far as he knows there is not a specified number of crashes before action, he has been employed by stagecoach for 11 years and has had a number of collisions in that time, none has resulted in a disciplinary and none were his fault.
-CCTV is not a split screen, there are 4 cameras, 2 are situated in the driver's cab, one faces out to the road, one is directed at driver. (slight confusion as to how he previously described it! lol). as well as footage of road and the collsion, there is also a 'black box' type thing which records when he braked etc (which he did as soon as they other driver swerved into his lane)
-in the letter i initially wrote for him, i requested a copy (in writing) before the hearing in order to give him time to seek legal advice and they refused and said 'as an internal disciplinary hearing is not a legal matter there is no requirement for us to supply a copy of the footage prior to any disciplinary hearing which will go ahead as arranged on 4 June'.
-my letter was.."in light of the written notice i received today requesting my attendance at a disciplinary hearing on june 4th. i am writing to formally request a copy of the CCTV footage from the collision i was involved in on May 22nd. The purpose of this request is for my independent legal advisor to review the footage prior to my hearing. Images of individuals are covered by the Data Protection Act 1998, the rights to public access clearly state that i have a right to be given a copy of the information comprising the data held on me. Furthermore, section 7 d) states i have a right of access to any information which i am the subject of 'for the purpose of evaluating matters relating to him such as his performance at work' (Data Protection Act 1998). Please ensure a copy of the footage is given to me at least 24 hours prior to my hearing on June 4th, giving me adequate time to present it to my advisor, if this cannot be done, i request the date of my hearing be postoned.' -thank you so much for your help!

[stevemLS]

Re: Data Protection/Disciplinary query

I'm still not understanding the CCTV system, he has the right of access to the images captured by the camera directed at him, but not the outfacing one. I was hoping that it was not possible to separate the two.

Whether or not he has the right to a copy of it, it is plainly evidence relevant to the incident - has he viewed it?

OK, make the subject access explicit and separate - don't allow them to conflate the SAR with the disciplinary process.

You on the other hand, in dealing with the disciplinary process, say you can't deal with it without the footage.

Failure to provide him with a copy of the disciplinary process is in itself sufficient cause to get the meeting tomorrow postponed in my view.

What was the date of the last letter you wrote?

Without his being given a clear statement of the allegations he faces, the disciplinary procedure and the evidence that they intend to rely on I really can't see how they can proceed with the meeting tomorrow as a disciplinary hearing.

[lawson77]

Re: Data Protection/Disciplinary query

I'm still not understanding the CCTV system, he has the right of access to the images captured by the camera directed at him, but not the outfacing one. I was hoping that it was not possible to separate the two.

Whether or not he has the right to a copy of it, it is plainly evidence relevant to the incident - has he viewed it?

OK, make the subject access explicit and separate - don't allow them to conflate the SAR with the disciplinary process.

You on the other hand, in dealing with the disciplinary process, say you can't deal with it without the footage.

Failure to provide him with a copy of the disciplinary process is in itself sufficient cause to get the meeting tomorrow postponed in my view.

What was the date of the last letter you wrote?

Without his being given a clear statement of the allegations he faces, the disciplinary procedure and the evidence that they intend to rely on I really can't see how they can proceed with the meeting tomorrow as a disciplinary hearing.

-sorry, the confusion about the CCTV was my fault, he described it as being of the road and of himself but he meant 2 separate cameras-one on him, one of the road. I know he cannot request a copy of the road one as he is not in it.
-he received the disciplinary letter yesterday (2nd) i wrote a reply yesterday and he took it to work this morning (3rd) they gave him the refusal letter this afternoon.
-so far my reply (dated today) says...."In response to your letter dated 3^rd June, I would argue that the Data Protection Act 1998 provides protection of personal data in the UK for any individual and allows them to access any information pertaining to them held by any company, it is immaterial for what reason the request is made, legal matters or not. As the CCTV evidence is critical to my defence in the hearing, you are obliged to both provide me with a copy of it prior to the hearing and also provide me with details of the case against me before I attend the hearing so I may ready my defence. In order to do this adequately, I feel it is necessary for me to seek independent legal advice to be fully aware of my position and rights at the hearing and in any future decisions which may be made against me. Under the Data Protection Act 1998, your obligations in this matter allow a maximum of 40 days to respond to my request for a copy of the personal data held by Stagecoach, until I have been fully informed and given time to prepare my defence I again request that the hearing is adjourned until such time as the information I request has been supplied. It has been duly noted of your initial refusal of my written request for a copy of the CCTV footage which I am legally entitled to a copy of".
-what else should i add?
-thank you so much for all this help, it is hugely appreciated. XXX

[teaboy2]

Re: Data Protection/Disciplinary query

He is still entitled to see any evidence they bring to the hearing and to have copies prior to the hearing, whether hes the data subject or not on the cctv that captured the accident, so that he can use the footage to prepare. That footage will clearly show if he wasn't at fault, and therefore result in the company having no grounds to conclude reasonable belief that he was at fault!

Remind them they are legally obliged to act fairly and reasonably in all matters relative to employment laws and regulations - That includes disciplinary procedures!

Your in good hands with @stevemLS as agree with him fully.

[stevemLS]

Re: Data Protection/Disciplinary query

I'm not sure there is much point doing the SAR as the footage of you OH in the cab won't be of much use.

I would write:

"Thank you for your letter dated 3rd June.

Of course it is my right to receive a copy of any personal data held about me in accordance with s7 of the Data Protection Act 1998.

Nonetheless, given that you have refused to provide a copy please ensure that all CCTV footage is available, with the necessary equipment to view it, at any and all meetings held to discuss this incident.

I further note that you have characterised this as a Stage 1 meeting. Regrettably you have failed to provide me with a copy of the disciplinary procedure and so I do not understand the significance of this Staging. It is entirely unclear to me whether the meeting is an investigatory meeting or a disciplinary hearing.

As I have been provided with neither particulars or any misconduct alleged nor any evidence upon which you intend to rely I can only assume that it is an investigatory meeting. This view is compounded by your failure to advise me of my right to be accompanied.

I am entirely confident that I acted completely properly during this incident and that, having considered the CCTV evidence together with my account of the collision it will be plain that it would be utterly inappropriate to proceed with any allegations of misconduct.

If, on the other hand, you intend to proceed today with a disciplinary hearing, as is implied by mention of potential sanctions, the gross defects in procedure mentioned above, render this a manifestly unfair process and I will have ben entirely denied my right to effectively participate in the process. In these circumstances, I am sure you would adjourn the meeting to enable you to remedy these defects and to permit me opportunity to prepare for a properly convened hearing.

In any event please provide me with a copy of the disciplinary procedure together with any ancillary procedures or policies for dealing with collisions involving company vehicles, by return"

Good luck and let us know how it goes.

[happylife]

Re: Data Protection/Disciplinary query

no, none mentioned. pretty much just what i quoted previously. tomorrow's hearing is noted as a stage 1 hearing.

.

In that case and as others have said. How can he defend allegations he has never received and nothing to prepare his defence on. Sounds to me like its a formality they go through on every accident. Check the footage ask some questions and close it down.
It should have this in company handbook.

[lawson77]

Re: Data Protection/Disciplinary query

He has been involved in a few other accidents in the 11 years he has worked for Stagecoach, none have been his fault and none have resulted in a Disciplinary Hearing. We are confused as to why this one has? It's not like it's a round number like 5 or 10! Lol.
The hearing is today and a decision should be given to him later on today after the hearing, I will let you all know the outcome. Thanks again for all your help, it's been invaluable. You are all amazing!!! 😃

[stevemLS]

Re: Data Protection/Disciplinary query

Hi Lawson

Have you seen suggested letter at post #12.

If you give that to the line manager or whoever is running the hearing as soon as he arrives at work, they may postpone meeting.

Let us know how it goes.