Learn more about the Data Protection breaches by Lewisham Council. These breaches were highlighted in the Vaughan v London Borough of Lewisham legal cases.
I submitted the following information and evidence to the Court regarding Data Protection breaches by the London Borough of Lewisham:
On 12 December 2012, Lewisham Council was issued with a monetary penalty notice for £70,000 by the ICO, because their social worker left sensitive documents in a plastic shopping bag on a train, after taking them home to work on.
The files included GP and police reports and allegations of sexual abuse and neglect. Just 2 months later Lewisham Council set about breaching my Data Protection rights as well. I advised the Court all about this.
Lewisham Council breached my rights under the Data Protection Act 1998. This effectively meant they it should not have been protected by qualified privilege.
I set out fully to the Court my arguments in relation to this. They can be found in my Particulars of Claim (at paragraphs 45.1 – 45.4, 47 – 48 & 56) and my Reply to the Defence, at paragraphs 3 – 4, 109- 111, 153, 215.43 and 261 – 269.
What were the breaches?
‘Cutting and pasting’ private, sensitive and confidential information from my Occupational Health referral into my colleagues Occupational Health referral, (and leaving my name in it), then sending this to my colleague and her Occupational Health consultant: (you have to scroll to the bottom of the page to see the details of this); and
Lewisham Council managers and HR staff had meeting with an external consultant, without my consent or knowledge in order to process my private, sensitive and confidential medical data, without providing me with a copy of the occupational health referral form and the notes taken of the data which was processed at those meetings: (you have to scroll to the bottom of the page to see the details of this).
It is important to also note the following:
- I had not consented to external note-takers, (who were not employees) being present during the 3 internal hearings that Lewisham Council conducted.
- In fact I had specifically objected to this, but they went ahead with this anyway, against my wishes and defamed me to them.
- Lewisham Council breached my ‘rights of rectification’: I was not given the opportunity to correct any data recorded about me, which was inaccurate or have any expression of opinion based on it, rectified, blocked, erased or destroyed.
- I was not given the opportunity to reply to all the false allegations before they were published and uttered to the third-parties who attended the hearings:
This is contrary to what Christine Grice and Lewisham Council’s Head of Public Service’s (Ralph Wilkinson- who was also Defendant in this case and the hearing officer who dismissed me) asserted in Lewisham Council’s official internal hearing notes.
The following is also contrary to paragraph 163 of it’s Defence to my defamation Claim, which concedes that the allegations had not been put to me prior to publication):
Christine Grice: ‘All the allegations in the presentation had been advised to you by letter.
Ralph Wilkinson: ‘Our letter of 13/2 outlined everything. You now have your opportunity. There is nothing that has been referred to by management here that was not advised to you in advance.
I had specifically stated that all the allegations had not been put to me, (this is all that Lewisham Council recorded in its official notes in relation to this):
Do you think it fair that there are a number of allegations made which I have not known about before, so am having to address on the spot? I have not had the opportunity to gather the necessary documentation to prove that they are all false.
I have not been afforded the opportunity to gather evidence to refute these allegations. I am not being given the opportunity to do so today.
Lewisham Council’s notes, (which were taken by the external note-taker from Brook Street Agency), inaccurately recorded/falsified my statement in relation to the denial of my right of reply, my full and accurate statements in relation to this is contained in my covert recording and transcript.
I submitted this as evidence to the High Court and read it out at the hearing.
I also pointed out that Lewisham Council failed to record what I stated, accurately and fully and that their notes were falsified.
My covert recording of the hearing contains the following:
Me: Right, why did I not get a copy of this prior to the hearing?
Christine Grice: I think I’ve answered that question
Me: Okay…so um…basically I haven’t been given the opportunity to um…address the allegations set out in this very lengthy document. Right, why did I not get a copy of this prior to the hearing?
Christine Grice: I think I’ve answered that question.
Me: Okay…so um…basically I haven’t been given the opportunity to um…address the allegations set out in this very lengthy document.
Christine Grice: The allegations are set out in my letter to you on 13 February.
Me: um…Sorry, this is a very detailed document with very specific and numerous allegations.
Now I hadn’t seen, I hadn’t known about any of these allegations prior to this hearing.
So my question is, when was I afforded the opportunity to deal with any of these allegations and collate/gather evidence to support any defence that I might have?
Ralph Wilkinson: That’s a procedure issue.
Ralph Wilkinson: That’s a procedural issue in terms of the submission of that whether that should be in advance or not.
I think what’s happened here is (muffled) management has provided you with a copy of that so that you can refer to that now.
It would not be normal to ask for that document in advance
Me: Right. Do you think it’s fair that there’s a number of allegations made in this document that I have not had the opportunity um…to address before this hearing?
I’m literally being asked to look at it/deal with it on the spot.
All of them I can prove are false.
However, because I haven’t been given the opportunity prior to this meeting to know what the allegations are, I haven’t had the opportunity to gather the necessary um…documentation to support the fact that they’re false.
Now how can that be fair?
Ralph Wilkinson: Well this is the council’s process um…which has been tried and tested for many years.
The allegations contained in the letter dated to you 13th February and what managers have done to go through and use the documentation that you had in advance to demonstrate those allegations.
Its now your opportunity to question those…
I set out the details of the denial of my right of reply in my High Court witness statement dated 13 March 2013, (which was read by Mrs Justice Sharp).
The Defendants’ made dozens of defamatory statements, which were all false, and involved a breach of the Data Protection Act 1998 and/or were irrelevant statements.
It can not be proportionate to make such extensive allegations in circumstances where no formal warnings and/or complaints had previously been given / made about me, and the allegations made were false and had never even been brought to my attention before.
Lewisham Council’s dismissal letter, (which I also submitted as evidence), also states that on the first day of the hearing I complained that I had not been given a copy of the presentation in advance and were therefore not being given the opportunity to refute the allegations.
Christine Grice had informed me during the last investigation interview she conducted with me on 4 November 2011, that she may have to interview me again, (following interviews with the other Defendants’). However, after interviewing the other Defendants’, in November 2011, she failed to re-interview me.
This was done in order to further deprive me of my right of reply. None of the specific false and malicious defamatory statements are set out in the Lewisham Council’s letter dated 13 February 2012, which was supposed to set out the specific allegation/charges against me. I also provided the Court with a copy of this.
The interchange which took place between I and Ralph Wilkinson, during Lewisham’s internal hearing on 27 February 2012 (which I covertly recorded), supports my contention that irrelevant statements were made. When I asked him what purpose the statements served, he responded by saying:
as regards to these allegations…none.
Lewisham Council conveniently left this out of their official internal hearing.
Lewisham Council claimed that the use of the external note-takers was to ensure that the notes taken were accurate. However, Lewisham Council’s e-mail to me dated 14 December 2012 at 15.00, even confirms that Susan Funnell did not take verbatim notes and that it took measures to avoid verbatim notes of one of the Defendants’ presentations needing to be taken during the hearing.
For example, in relation to Elaine Smith’s 14 page presentation and the related discussion she had about it with the Hearing Office she presented it to, (Ralph Wilkinson, who subsequently went on to take the decision dismiss me), the external note-taker only took half a page of notes!
Then, to top that off, Lewisham Council then decided to withhold the notes and the written version of Elaine Smith’s presentation from me for a year.
These circumstances support of my contention that the use of a note-takers from outside agencies was not in pursuit of a legitimate aim.
Lewisham Council admitted in an e-mail to me dated 7 December 2012 at 12.06, that they didn’t even bother to check the external note-takers notes before sending them out to me and that they had not disclosed the presentation because it was assumed that it was contained in the main notes of the hearing.
So we are expected to believe that Lewisham Council was so concerned with accurate notes being taken that it felt it necessary to get professional note-takers in to do it, (when they had always used in-house staff before), whilst ignoring my objections and rights in relation to disclosing what should be private matters, to members of the public, then:
Not even requiring the note-taker to take verbatim notes!
Not even checking the notes that were taken!
Not proving me with copies until a year later!
It is clear that the use of independent note takers served absolutely no beneficial purpose at all, as the minutes that Susan Funnell (from Brook Street Agency) took were inaccurate and not a true reflection of what took place.
If you compare my transcripts and covert recording to her alleged short-hand notes/ Lewisham Council’s official internal hearing notes, it is clear that Susan Funnell omitted crucial statements that I and other attendees had made, inserted her own sentences and words, (to include statements that I did not make) and she also included personal comments, i.e. her opinion on an individuals feeling and actions, which clearly is not a requirement when you are simply hired to take minutes.
Susan Funnell’s and Jocelyn Heyford’s notes aided the Defendants in their efforts to discriminate, paint a false picture of me and to defame and unfairly dismiss me.
The Data Protection Act does not permit the processing of data without consent where this is no legitimate activity and which is to the detriment of an individual, in this case, me.
Lewisham Council also breached my rights of access to the false data which they held about me:
I advised the Court that on 14 November 2012, Lewisham Council e-mailed me attaching Elaine Smith’s grievance presentation. Elaine Smith was a Defendant in the case. She is a senior manager in the Youth Support Service at Lewisham Council. She was also my manager.
I should have received this 7 months prior, (along with the notes that Lewisham Council sent to on 5 April 2012), which constitutes a breach of her right of access under the Data Protection Act 1998. I had also required the grievance presentation to deal with my internal appeal.
I also advised the Court that on 11 March 2013 at 16.32, Lewisham sent an e-mail to me attaching the external note-taker (Susan Funnell’s) half page notes to Elaine Smith’s presentation, (which was her response to my grievance).
Elaine Smith’s presentation, (which I had not been privy to, as it was conducted in my absence), was very lengthy (14 pages long) and it contained false allegations. I should have received Susan Funnell’s notes to the presentation a year prior, (on 5 April 2012), which constitutes a breach of my right of access under the Data Protection Act 1998.
Previous Data Protection Breaches
Breach 5: Lewisham Council ‘cut and pasted’ information from my Occupational Health referral into my colleagues Occupational Health referral, (leaving my name in it). This was then sent to my colleague and her Occupational Health consultant:
On 25 May 2011, I was alerted by my colleague via e-mail, to the fact that Lewisham Council had ‘cut and pasted’ information from my Occupational Health referral into my colleagues Occupational Health referral, (leaving my name in it) and sent this to the Occupational Health consultant.
I was extremely distressed by this news and worried and anxious about the fact that confidential details about my health had been disclosed.
I sent Elaine Smith an e-mail, (copying in Christine Grice- Lewisham Council’s former head of Access and Support and also a Defendant in this case), Frankie Sulke- Lewisham Council’s Executive Director of the Children and Young People’ Service and Unison), expressing my anger and distress.
Elaine Smith did not acknowledge my e-mail that day. My colleague told me that she had spoken to Elaine Smith that day, and that Elaine Smith had told her that the incident was ‘a mistake’.
On 27 May 2011 at 11.46, Elaine Smith responded to my complaint about the data protection breach. She informed me that she would get back to her the following week, however, she failed to do so. This issue would not be addressed by her until 30 June 2011, when I attended a meeting with her and her manager Christine Grice, (also a Defendant in the case).
On 28 June 2011 I met with Christine Grice and Rita Lee (Lewisham’s HR officer), about the data protection breach and other issues, (which Lewisham Council treated as ‘grievances’).
Christine Grice had been copied into my e-mail regarding the data protection breach and she and Rita Lee had also met with my colleague to discuss it the previous day, (the one who had alerted me to the fact that my confidential medical information had been cut and pasted into her Occupational Health referral form).
During the course of their meeting with my colleague, they apologised to her for the data protection issue. However, during my meeting with them, both Rita Lee and Christine Grice denied any knowledge of the data protection breach and no apology was given to me.
I have documentary evidence of this, (my unison reps notes and Lewisham Council’s notes to this meeting and the minutes to the meeting held with my colleague).
During my meeting with Elaine Smith and Christine Grice on 30 June 2011, Christine Grice shouted at me and Elaine Smith advised me that the reason why she had failed to get back to me after I contacted her on 26 May 2012, about the Data Protection breach was because ‘she had work to do’.
I covertly recorded this meeting and submitted it to the Court along with the transcript.
No formal action was taken against the manager who I believe was responsible for the breach (Valerie Gonsalves), and both Elaine Smith and Valerie Gonsalves had sent me e-mails requiring me to still accept being line managed by Valerie, (whilst an investigation into my serious complaint about her had not even been resolved and I had asked to be line managed by someone else, because I had lost confidence in Valerie as a line manager).
Lewisham Council then denied that there had been any breached and cleared Valerie Gonsalves of any wrong-doing, (which I covertly recorded the Unison rep Jackie Lynham stating that it was clearly wrong for them to do).
Breach 6: Lewisham Council’s managers and HR staff met with individuals without my consent or knowledge and processed my private, sensitive and confidential medical data, without providing me with a copy of the occupational health referral form and the notes taken of the data which was processed at those meetings:
On 20 July 2011, I attended my Occupational Health appointment Lewisham Council had arranged for me with Marina Waters (Senior OH Adviser and Managing Director of the independent company OHWorks). I was accompanied by my.
Marina Waters was evasive when I asked if she had met with management prior to meeting with me. She advised that she had not discussed my case with management prior to meeting with me.
Later that afternoon I attended supervision with Elaine Smith. I covertly recorded this meeting. Elaine Smith gave me a conflicting account of her contact with Marina Waters.
Elaine Smith advised me that Marina Waters had specifically requested a meeting with her to discuss my case- because Marina Waters’ had concerns about the stress risk assessment that she was going to do on me.
They two met to discuss my confidential medical information, without my consent or knowledge.
No formal written occupational health referral was made by Lewisham Council to Marina Waters, (it was just verbal), so I don’t know what information was shared or discussed and notes were taken of the discussion by Lewisham Council.
Rita Lee, (Lewisham Council’s HR officer) also met with Marina Waters to discuss me with Marina Waters’, again; this was done prior to me meeting with Marina Waters, without my knowledge or consent. In addition to this, like before, no notes were taken by Lewisham Council of the discussion had and specific information shared.
On both these occasion, Lewisham Council processed my data without providing me with a copy of the occupational health referral form and the notes taken of the data which was processed at those meetings.
This constitutes a breach of my rights of access under the Data Protection Act 1998.
On 20 July 2011, I put a formal complaint in writing to the Chief Executive about Marina Waters’ and Elaine Smith. No action was taken.
Marina Waters would later make a statement to the Tribunal, saying that:
All I can say is WOW!
One of Lewisham Council’s justifications for my dismissal is that it allegedly didn’t have any information about my medical condition, there was no evidence I was disabled, (suffering with depression), and that it would have difficultly obtaining the information.
I informed the Court that this was a pack of lies, because:
In a document which Lewisham Council relied on as evidence at the tribunal, (its equality questionnaire form response), it stated that a case conference between the relevant OH professional and a manager is standard practice in appropriate cases, with the aim of providing the Occupational health professional with relevant background information prior to meeting with the employee: I am unsure how Lewisham Council could provide any information about me to Marina Waters, in 2 separate meetings with her, involving different managers, if it allegedly did not have enough information on my condition.
Lewisham Council had my full medical records;
In the first occupational health referral form Lewisham Council made for me in May 2011, it admitted that it accepted that I was disabled and covered under the relevant legislation- (Lewisham Council had also arranged for me to see 3 different occupational health consultants in the space of just 6 months, which I had complied with; and
Lewisham Council had admitted to the Tribunal, (the year before I was dismissed and then again, after I was dismissed), that I was disabled!!!!