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When the breach first occurred, UCU took legal advice and what was apparent was that, unless there was specific misuse of the leaked data so as to cause a loss to the member, we were not going to be able to pursue claims in relation to the breach in and of itself. Members could of course contact the Information Commissioners Office (ICO) themselves to raise a compliant that their information had been part of the breach, but legal claims would need specific misuse of the data.
If any member has had the data that was disclosed as part of the Capita/USS breach misused and has suffered loss then we will be able to assess any potential legal claim for them. In that circumstance they should contact the regional office, via the branch, to ask for assistance.
We have been informed that Capita continues to work on an internal investigation into the breach and that this is unlikely to be shared wider than the ICO. Even USS and other companies who had contracts and whose employee/members data was lost are unlikely to see this. USS remains committed to engaging with us on this.
We are also aware of a class action advertised and being taken by certain legal firms with an indirect consequence being that Capita will be even less willing to release any investigation report for public consumption as it could be used against them in this action.
UCU has considered similar action but has not taken this action yet for three reasons –
- In order to successfully prosecute a case against Capita in the courts, we must show actual financial loss directly linked to the data breach. It is not sufficient to highlight the anxiety and stress such a breach has caused. Despite having taken advice for a small number of members individually regarding further data breaches following the Capita breach, we have been unable to directly link these to the Capita breach.
- We want to manage expectations about what could be achieved through a legal process as without evidence of loss, our advice is that any claim would likely lose.
- Members have up to three years to lodge a case against Capita. Any legal process will be limiting, lengthy and costly. Having taken legal advice, we decided against lodging cases until we had receipt of the Capita report and better understand what actions the ICO could be taking.
This issue is still very much live for us and we continue to engage USS and the ICO regularly. The advice remains as set out above – we will continue to push for release of the Capita Internal Report and push the ICO to take up an investigation against Capita. We will then make our decisions based on this information.
