Disciplinary/Reference help please.

[tonymacaroni]

I'd be grateful for some help regards a real problem I have since leaving the employment of a major UK bank in March of this year. Let me explain:

 

I worked as a Financial Adviser in a number of bank branches for 11 years as part of a 24 year career with them. The job itself is classed as a 'controlled function' or 'regulated role' under FSA guidelines due to the duty of care around the advice I or other FA's provide to clients.

 

In 2005 I was diciplined by the bank for the first and thankfully only time in my career. I made a poor decision at the time to complete the sale of a small investment (£6,000)for clients on a 1st appointment basis instead of following a 2 appointment process. The customers had given me signed authority to complete the investment on their behalf and I only did so after sending the customer my advice in writing and confirmed subsequently by telephone call that they had received, understood and were happy with the advice. They confirmed that they were and insisted on me investing for them. As procedures had changed since our initial meeting, I needed to ask them back in for a 2nd appointment however I made the wrong decision for the convenience of the customer and myself to a small extent to proceed on their behalf without doing so. I wrongly input a date of 2nd appointment into the customer file (company record) which was a lie and which I have regretted ever since. As a result of a customer contact (random telephone call by the company to the customer) they identified that I hadn't had a 2nd appointment to which when I was challenged, I openly and honestly confirmed had not happened and as a result after an interrogation and meeting led to a 'Final Written Warning'.

 

At the time my wife was 8 months pregnant and my father had just suffered a heart attack and with the added disciplinary pressure, I decided not to appeal the severity of the warning even although I felt I was being very harshly treated and is now something I regret not doing. MyLine Manager with an HR employee of the bank present explained to me 'verbally' that the Final Written Warning was for 12 months and that it would show on any references if I applied for another job externally during that time. They also stated that if there were further issues during the 12 months then it would likely lead to further disciplinary action or dismissal. Since then the bank has shown unbeleivable inconsistency in it's approach to employee diciplinary matters and I have several instances in which I feel I would be able to challenge them around their consistency although I would rather not!

 

5 years later (2010) I secured another job with another major company after disclosing my 12 month warning to them as part of the complete assessment process. However, as a result of the reference they received, the new employer basically asked me to resign. This was on the basis that the warning being a Final Written Warning is classed as more serious than for example a written warning which was never explained to me at the time.

 

I have since went back to the bank for an explanation as to why they even noted the disciplinary on my reference. Their HR manager replied that as I was in a 'regulated role' and was applying for a regulated role, the disciplinary decision would be disclosed/held for reference purposes for a period of 10 years! This was never disclosed to me and if it had been, I would, without doubt, have appealed the initial disciplinary decision.

 

I have requested by e:mail on 2 occasions a copy of my personnel file under Data Protection legislation and have my Union trying to help me but they and the bank are painfully slow at responding and it seems no individual is willing to step up to try to resolve the issue decicisively.

The bank have not confirmed if they have acted on my request for personnel file and I believe they have 40 days to do so?

 

Also, do I have any legitimate recourse against the bank in challenging:

 

1) The disciplinary decision - as in my eyes if they have not disclosed fully the implications of the warning (eg Reference 10 years!) then it should be removed completely. I am justifying this as never having full and proper information on which to excercise a right of appeal.

 

2) As a result of their failed information process relating to my disciplinary of 2005 and me subsequently having to give up a job which I started on 26th April 2010 and resigned on 5th May 2010 can I claim the bank for lost earnings, lost pension provision as well as damage to professional reputation.

 

3) What if the bank is not communicating with me and does not act on my Data Subject Access Request (Data Protection Act) for a full copy of my personnel file?

 

Sorry for the long speel but the more info. someone has, hopefully the more able they might be able to help me.

 

Thanks

[maroondevo52]

Hello and Welcome,

 

I'll move this thread to the appropriate Forum.

 

Regards.

 

Scott.

[Bigredbus]

I'd be grateful for some help regards a real problem I have since leaving the employment of a major UK bank in March of this year. Let me explain:

 

I worked as a Financial Adviser in a number of bank branches for 11 years as part of a 24 year career with them. The job itself is classed as a 'controlled function' or 'regulated role' under FSA guidelines due to the duty of care around the advice I or other FA's provide to clients.

 

In 2005 I was diciplined by the bank for the first and thankfully only time in my career. I made a poor decision at the time to complete the sale of a small investment (£6,000)for clients on a 1st appointment basis instead of following a 2 appointment process. The customers had given me signed authority to complete the investment on their behalf and I only did so after sending the customer my advice in writing and confirmed subsequently by telephone call that they had received, understood and were happy with the advice. They confirmed that they were and insisted on me investing for them. As procedures had changed since our initial meeting, I needed to ask them back in for a 2nd appointment however I made the wrong decision for the convenience of the customer and myself to a small extent to proceed on their behalf without doing so. I wrongly input a date of 2nd appointment into the customer file (company record) which was a lie and which I have regretted ever since. As a result of a customer contact (random telephone call by the company to the customer) they identified that I hadn't had a 2nd appointment to which when I was challenged, I openly and honestly confirmed had not happened and as a result after an interrogation and meeting led to a 'Final Written Warning'.

 

At the time my wife was 8 months pregnant and my father had just suffered a heart attack and with the added disciplinary pressure, I decided not to appeal the severity of the warning even although I felt I was being very harshly treated and is now something I regret not doing. MyLine Manager with an HR employee of the bank present explained to me 'verbally' that the Final Written Warning was for 12 months and that it would show on any references if I applied for another job externally during that time. They also stated that if there were further issues during the 12 months then it would likely lead to further disciplinary action or dismissal. Since then the bank has shown unbeleivable inconsistency in it's approach to employee diciplinary matters and I have several instances in which I feel I would be able to challenge them around their consistency although I would rather not!

 

5 years later (2010) I secured another job with another major company after disclosing my 12 month warning to them as part of the complete assessment process. However, as a result of the reference they received, the new employer basically asked me to resign. This was on the basis that the warning being a Final Written Warning is classed as more serious than for example a written warning which was never explained to me at the time.

 

I have since went back to the bank for an explanation as to why they even noted the disciplinary on my reference. Their HR manager replied that as I was in a 'regulated role' and was applying for a regulated role, the disciplinary decision would be disclosed/held for reference purposes for a period of 10 years! This was never disclosed to me and if it had been, I would, without doubt, have appealed the initial disciplinary decision.

 

I have requested by e:mail on 2 occasions a copy of my personnel file under Data Protection legislation and have my Union trying to help me but they and the bank are painfully slow at responding and it seems no individual is willing to step up to try to resolve the issue decicisively.

The bank have not confirmed if they have acted on my request for personnel file and I believe they have 40 days to do so?

 

Also, do I have any legitimate recourse against the bank in challenging:

 

1) The disciplinary decision - as in my eyes if they have not disclosed fully the implications of the warning (eg Reference 10 years!) then it should be removed completely. I am justifying this as never having full and proper information on which to excercise a right of appeal.

 

2) As a result of their failed information process relating to my disciplinary of 2005 and me subsequently having to give up a job which I started on 26th April 2010 and resigned on 5th May 2010 can I claim the bank for lost earnings, lost pension provision as well as damage to professional reputation.

 

3) What if the bank is not communicating with me and does not act on my Data Subject Access Request (Data Protection Act) for a full copy of my personnel file?

 

Sorry for the long speel but the more info. someone has, hopefully the more able they might be able to help me.

 

Thanks

 

Hi, and welcome to the CAG.

 

(a) you want to contact the bank, in writing, and request a true copy of the protocol, or statute on which they based their statement (10 years period).

 

(b) if the bank fails to transmit all documents requested under the DPA within the prescribed 40 days, you can make a compaint to the ICO...

 

© you would have to wait for the bank response(s) before initiating any legal action.

[tonymacaroni]

Thank you for your reply. The Union have asked a couple of questions around the communication of their disciplinary process and around the protocol/procedures which they enforce therefore it appears we are on the right track. I'd noticed the Information Commisioners Office on the web but that's great to direct me there, if required. What is a reasonable period of time for a bank to take would you suggest and should I be pestering HR persons, Union reps etc daily, weekly as while I want to resolve the issue quickly, I want to keep people onside.

 

I wonder if I should apply for 'The Apprentice'.....mmm.............thanks again.

[honeybee13]

Hi there and welcome from me too. If you request information under the Information Commissioner's ambit, it's called a subject access request and should show on their website. They are entitled to charge you £10 for this and are supposed to reply within 40 days as BRB says, or you can report them to the ICO.

 

Have you applied for a SAR, or is this normal correspondence for now?

 

HB

[tonymacaroni]

Hi honeybee13.

 

Thanks for your reply. I had requested copy of personnel file on correspondence e:mails of 7th May and 21st May. The HR contact I was dealing with then only replied to my e:mail of 28th May that he had forwarded my Data Subject Access Request to the appropriate DSAR Unit within the bank and that they would be in contact to collect the appropriate fee. Since then however, I have had no contact and as the HR person is on holiday, no one else has been able to confirm if my request is in progress. I've e:mailed another HR contact today as I'm worried that the bank are simply delaying/giving themselves time. Any thoughts/ideas?

[honeybee13]

When do you think your Subject access request runs from Tony?

 

HB

[honeybee13]

Me again. I don't know how to move along an access request, would suggest you try the ICO's website.

 

They have a helpline if you want to ring

 

0303 123 1113.

 

HB

[tonymacaroni]

I would expect that a Data Subject Access Request runs from the day the company/bank receives wriiten notification (which should be covered by e:mail). If I am correct with this then it would be 40 days from the 7th May meaning the bank should respond by the 16th June. I have just used the helpline tel.no. you provided and the ICO have confirmed that the e:mail is sufficient and that the deadline is the 16th June. Thank you again.

[honeybee13]

You're welcome, a thank you is always nice . So you sit tight until 16th June then. Did you ask the ICO what you do on 16th June, or will you ask them at the time?

 

I don't know what the others think, but I would be inclined myself to email or ring the person dealing with it at the bank, point out the deadline and that not acceeding to your request is in breach of the ICO's guidelines. What do you think, guys and Tony?

 

HB

[tonymacaroni]

I'll contact the ICO on 16th June.

 

I've informed the Unions National Officer of the deadline and also the HR point of contact within the bank.

 

You'll probably appreciate that I can't confidently secure a similar role until I get this sorted. In the meantime, close family and friends ask how I'm doing, and while they have the best intentions (I hope), I don't want to be having this in my mind all of the time, although it is very important to me. I don't unfortunately have control of everything, I have to rely on others ie the bank, the Union, deadlines etc before I can progress but people naturally close to me are saying chase him, do this, do that and that is difficult to handle at times......Patience by Take That is a favourite song of mine and I believe a great virtue.......saying nothing at times can be a greater strength and advantage than being vocal all of the time.

[tonymacaroni]

Hi again.

 

I've received an e:mail earlier today brom the banks HR Partner advising me that his note to the Data Subject Access Request Unit was returned to him stating that "a personnel file is not classed as a 'relevant filing system' under the terms of the Data Protection Act."

 

Has anyone ever heard of this? It seems like another avoidance tactic to me by this bank. I think I will phone the Information Commisioners Office tomorrow morning but I'm so annoyed that I thought it best to share my frustration with you all.

 

The frustrating part is that the HR Partner sent me an e:mail advising he'd sent the note for a copy of my personnel file to the DSAR Unit on the 28th May but he has only relied/updated me on the 14th June although he was on holiday last week.........aaaaagh.

[Sidewinder]

Absolute nonsense. I think that you need to ask in what form the employment records system does not constitute a 'Revevant Filing System' and how the personnel records are structured if not in such a manner.

 

A Relevant Filing System is one which enables the user to select information about one specific individual. On a computerised system, this would be one which would retrieve data about one individual by selecting a name or employee number for example. For a paper based system, imagine a filing cabinet labelled 'Personnel Records' then opening the drawer to see a number of files, each with an employee's name on it. By selecting a named file from the drawer one would access the employment record of that employee and only that employee. For the filing system not to be relevant you would have to imagine that on opening the filing cabinet drawer you would find a single file containing the details of every employee with no easy means of retrieving a single set of data for one employee.

 

As defined by the DPA, a Relevant Filing System is

 

"...any set of information relating to individuals to the extent that, although the information is not processed by means of equipment operating automatically in response to instructions given for that purpose, the set is structured, either by reference to individuals or by reference to criteria relating to individuals, in such a way that specific information relating to a particular individual is readily accessible"

 

Is one to believe that an institution dealing in financial services and the various regulatory obligations which they seek to use to damage your career, does not maintain records on it's employees in a similar manner to that which they must surely have to use to maintain clients' details?

 

There is some additional guidance on Relevant Filing Systems from the ICO HERE

 

I think that the ICO will be baffled as to how they think they can dodge this one in this manner.

[tonymacaroni]

Thanks for your reply Sidewinder. I cannot understand how they can say my personnel record isn't classed as a 'relevant filing system' when they have clearly been able to pull out details of my disciplinary of 2005 and include it on a reference. It seems to me to be of double standards. I'll check with the ICO and update the thread. Thanks again.

[honeybee13]

Stick with it Tony, you'll get there.

 

Are the bank at the deadline for the ICO's 40 days now, I can't remember?

 

HB

[tonymacaroni]

Hi honeybee13.

 

Thanks for your interest.

 

Tomorrow is the 40 day deadline re banks deadline BUT they have said the personnel file doesn't count in terms of Data Parotection as it's not classed as a relevant filing system! I have just phoned the ICO and their employee said that she couldn't comment on whether that was correct or not. In view of this, if I make a complaint to the ICO tomorrow, they will check into it for me and if the bank is incorrect, force them to comply. I have received an e:mail though stating that the HR Advice and Guidance department have requested my personnel file from Records Department and that they hope to be able to post this to me in 10-14 days time. It's taken far too long to reach this atge but it appears some progress is finally being made! I'm on holiday 20/6 - 2/7 thus things likely only progress after that.

[Bigredbus]

Hi,

 

Despite their communication stating that the file you are requesting is 'excluded' from the DPA, you should raise a complaint with the ICO...

 

The DPA clearly states that they should comply with your request within the prescribed 40 days... it took them 35 days to look into your request and then, at the last possible minute, send you that letter!

[tonymacaroni]

I agree wholehartedly Bigredbus and thus I will complain formally through the ICO. Even if the bank is correct thereshould be a code of best practice for employers, rather than waiting until the 39th day before denying it is their responsibility.

[honeybee13]

I agree Tony, very convenient for them, isn't it? Let's hope the ICO sorts them out.

 

HB