Threat by Employer of Investigation into alleged acts of serious misconduct

Ecoenergy

I appreciate any advice people may have or experience in this area. I have been blown away today, having received a letter from my employer stating that I may be in breach of the data protection act and an investigation is going to be carried out this week, the result of which may lead to dismissal. I'll try to summarise what has happened as best I can.
There are 3 people working in my office which I will call employees A, B (me) and C. Last week employee A came across a folder saved on a public drive which was titled budget 2016. He referred to a powerpoint presentation which our bosses made to their bosses about where the company is going next year. Also within this folder I came across a file which had everyones salary for the current year and I made employee A aware of this. Employee C was off that day. Employee A then made me aware of another file which had all salaries for 2016, i.e. showing payrises and bonuses. The following day employee A made employee C aware of this file, even though the file clearly showed that employee A was getting a payrise and employee C and I were not. Employee C and I discussed what to do, so we approached the MD and brought it to his attention that this sensitive information was in a public folder for anyone within the company to see. He thanked us for bringing this to his attention. We also highlighted the unfairness in pay increases and asked that we be considered for a payrise. He said that he would need to think about this and would let us know.
When we arrived in work this morning we were brought into a meeting room, given a formal letter and told that the company were investigating into alleged acts of serious misconduct. We were told that the access and use of this information is in breach of the data protection act 1988 to 2003. The letter stated the subject matter of the investigation and the issues that arise to be investigated are:
- You accessed and viewed sensitive and personal financial information of another employee.
- You disclosed this information to other persons to include in discussions with the MD and attempted to use it to challenge your salary.

It is worth noting at this point that employee A is not being investigated, as he did not approach the MD. One question I have is can I use in my defense the fact that it was employee A who brought the 2016 salary file to my attention, therefore he disclosed the information about his own salary?
I have been in contact with the data protection office who stated that we are not in breach of the Data Protection Act, but the employer is, by having the information in a public folder.
Should I state that I came across the folder and made employee C aware of it and keep employee A out of the investigation? If I say that I was unaware of what was in the file before opening it and that I directed employee C to the file without specifically telling him what was in it, is this our best case for defense?

My head is fried from this but any advice is much appreciated.

mel123

I don't have experience with this to offer advice, but what I would say is tell the truth 100% from the beginning, if you start telling fibs and keeping Employee A out of the picture, all it takes if for one slip and it throws your whole story in to disarray.
I don't imagine they have much of a leg to stand on really, the file was in a public directory for you and anyone else to access. Any normal sensible person is going to challenge their employers on a payrise if someone is getting one and you are not. I cant see that you have done anything wrong, other than told Employee C about it and that then they accessed the file. I could be wrong, but I don't see them being able to terminate your employment for anything. Id be fuming, but id be fuming at my employer for trying to turn this around on me.
Are you in a union? If so get on to them ASAP and get them to come out and meet with you.

whippet

you will need to speak with a solicitor.

Just a heads up .. don't try and twist the order of events; as you can be sure as hell that your employer has spoken to all parties involved before instigating an investigation.

The bare facts are that you (not anyone else) came across a sensitive file and chose to show it to other employees before making management aware of it. - this is where you slipped up.

Ecoenergy

mel123 wrote: »

I don't have experience with this to offer advice, but what I would say is tell the truth 100% from the beginning, if you start telling fibs and keeping Employee A out of the picture, all it takes if for one slip and it throws your whole story in to disarray.
I don't imagine they have much of a leg to stand on really, the file was in a public directory for you and anyone else to access. Any normal sensible person is going to challenge their employers on a payrise if someone is getting one and you are not. I cant see that you have done anything wrong, other than told Employee C about it and that then they accessed the file. I could be wrong, but I don't see them being able to terminate your employment for anything. Id be fuming, but id be fuming at my employer for trying to turn this around on me.
Are you in a union? If so get on to them ASAP and get them to come out and meet with you.

Thanks, I also think involving employee A is the best option though it would harm the working atmosphere in the office (if we all still have a job). I don't think the company would get rid of all 3 of us because it would hurt them financially. I am not in a union but the two of us are meeting with a solicitor this afternoon.

seamus

whippet wrote: »

The bare facts are that you (not anyone else) came across a sensitive file and chose to show it to other employees before making management aware of it. - this is where you slipped up.

That's not the bare facts at all if you read the OP. Another employee made the OP and one other aware of the file, who then went to the MD about it.

As others have said, the best thing to be is honest. If you try to twist the facts to paint yourself in a better light, you will get caught out and make things worse. Don't try and protect A, bring him into it.

So, although strictly speaking you didn't show the file to anyone else, there's an alternative reading to this that doesn't paint you in a good light;

You and C decided to approach the MD only after you discussed the contents of a confidential file (that you knew you weren't authorised to have access to) and discovered that employee A was getting a payrise.
If you were all getting the same payrise, would you have said anything to anyone?
So it could be construed that the reason you went to the MD with this is because you wanted to challenge the (probably provisional) salaries for the next year, and not because you were concerned about confidential information being exposed.

The correct thing to do in this situation would be to bring the exposed file to the MD's attention and say nothing about the contents. At review time then put on a hard sell for a salary increase without mentioning that you know what anyone else is getting.

MarkAnthony

Speak to a solicitor with an element of employment law within their practice. They will advise you in relation to calling any witnesses etc. and the best strategy going forward.

My lay perspective is you accessed data that was clearly not something you should have been viewing, it was obvious what is was and you attempted to use that data for your own ends. I think you're going to need all the help you can get talking your way out of that one.

Manach

The above advice about the solicitors is the best possible one.

Just in general, and this is only AFAIK, the data protection acts only protects data that identify individuals. So a budget file of work collegues might/might not fall under that. As well, there should be an onus on the owner of the file to take reasonable steps to protect the file if it were under data protection, eg encryption. Finally, under employment law the OP would have an option to bring a representative with him to any investigation and also be aware that offence in question must be reasonable be held to serious to objectively warrant dismissal, not what the employer considers to be so.

Ecoenergy

whippet wrote: »

you will need to speak with a solicitor.

Just a heads up .. don't try and twist the order of events; as you can be sure as hell that your employer has spoken to all parties involved before instigating an investigation.

The bare facts are that you (not anyone else) came across a sensitive file and chose to show it to other employees before making management aware of it. - this is where you slipped up.

Although I came across the salary folder for 2015, it was employee A who came across the salaries for 2016 and pointed this out to me and the other employee. I'm hoping that this will be viewed as him disclosing his own salary.

Ecoenergy

Just another question I've thought of.
The employer has told us not to discuss this case among ourselves but naturally we have been as we work in the same office. Has he got the right to say this to us?
I was thinking if we tell the truth and bring employee A into the case, could he deny it and say that we have been talking about the case? We are even planning to go and see the same solicitor this afternoon.

3DataModem

Just tell the truth. You made an error by not reporting it to a superior immediately; but you did it pretty quickly.

By bringing the salaries into the discussion you totally muddied the issue; forget about that for the moment and focus on the real topic which is what you did once you realised this info was exposed internally.

3DataModem

Ecoenergy wrote: »

Just another question I've thought of.
The employer has told us not to discuss this case among ourselves but naturally we have been as we work in the same office. Has he got the right to say this to us?
I was thinking if we tell the truth and bring employee A into the case, could he deny it and say that we have been talking about the case? We are even planning to go and see the same solicitor this afternoon.

Yes he has the right to tell you not to discuss confidential work stuff with each other, irrespective of what you know they know etc.

seamus

Ecoenergy wrote: »

Just another question I've thought of.
The employer has told us not to discuss this case among ourselves but naturally we have been as we work in the same office. Has he got the right to say this to us?

Yes. It would be standard practice that employees should not discuss the details of any disciplinary process with anyone who is not involved in the process.

Although both of you may be subject to the process for the same issue, unless you're being interviewed together then they are for all intents and purposes separate and individual processes.

Discussing it between yourselves could be construed as further grounds for disciplinary action.

jimmycrackcorm

You should take issue with your employer that in fact they are in breach for publishing your private information company wide. It is their responsibility that your personal information was kept in a publicly accessible folder. The fact that you were able to access it just demonstrates that anyone else could and they have no way of knowing who else accessed it and there is no defence in saying that no one else raised the issue so it must just have been you.

ohnonotgmail

jimmycrackcorm wrote: »

You should take issue with your employer that in fact they are in breach for publishing your private information company wide. It is their responsibility that your personal information was kept in a publicly accessible folder. The fact that you were able to access it just demonstrates that anyone else could and they have no way of knowing who else accessed it and there is no defence in saying that no one else raised the issue so it must just have been you.

while this is true they also sought to gain from this personal information instead of informing their employer that the information was publicly available. There seems to be fault on both sides.

TheChizler

ohnonotgmail wrote: »

while this is true they also sought to gain from this personal information instead of informing their employer that the information was publicly available. There seems to be fault on both sides.

Only after A made them aware of the information though?

ohnonotgmail

TheChizler wrote: »

Only after A made them aware of the information though?

Also within this folder I came across a file which had everyones salary for the current year

I think this is the point where the OP (employee b) comes unstuck. After being made aware of personal information being publicly they decided to have a little look through it first. He only brought it to his managers attention after discussing with a third party (employee c). If they had gone straight to their manager they would not be in any trouble.

Zambia

Seriously call a solicitor.

You have been accused of an offence, have them defend you.

MarkAnthony

Zambia wrote: »

Seriously call a solicitor.

You have been accused of an offence, have them defend you.

They don't need to defend you per se. Just having them on board to ask questions and plot out a strategy will be well worth the investment in fees.

Shelflife

So to use a non computerised analogy, a senior member of the company left some confidential files lying around the canteen. Some staff members saw these files and looked at them, they turned to their friends and said , Jasus Jimmy will you look at this !!

They then brought the files to the manager and wondered why they weren't getting a raise as well as some of the others?

It seems to me that the main culprit in this scenario is the senior manager who left the files lying around . They are in breach of the data protection act and it is their fault that this mess has arisen.

Seems like some poor quality ass covering going on here that could get messy, you need to cover your own ass here op, lawyer up !!

TheScriptFan

I had a very similar situation in work 2 years back whereby someone else found a confidential file and showed me and before I knew it there was all sorts of high drama going on with data protection being thrown all around the house. I very early on got my solicitor involved who was very familiar with data protection act and it was all sorted within 24 hours in my favour. The onus is on the owner of the information to keep it safe. My advice would be get a solicitor with good experience in this area, don't discuss with anyone at work.

Serjeant Buzfuz

TheScriptFan wrote: »

I had a very similar situation in work 2 years back whereby someone else found a confidential file and showed me and before I knew it there was all sorts of high drama going on with data protection being thrown all around the house. I very early on got my solicitor involved who was very familiar with data protection act and it was all sorted within 24 hours in my favour. The onus is on the owner of the information to keep it safe. My advice would be get a solicitor with good experience in this area, don't discuss with anyone at work.

Get a specialist solicitor this is a preemptive attack by management to try and blame you for their own mistake

JimsAlterEgo

and stop talking about it online