Gagging Orders

John Rudkin made this Rhyddid Gwybodaeth request to Blackpool Borough Council

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

Gwrthodwyd y cais gan Blackpool Borough Council.

Dear Blackpool Borough Council,

What is the Council's position regarding the use of "Compromise Agreements"?

I ask the following questions in light of the recent developments surrounding the outlawing of "gagging orders". Within the last few months, the practice and use of this sometimes draconian form of silencing ex-staff have been the subject of news reports about, not only Mid Staffordshire and Airdale Hospitals, but Lincolnshire Hospitals Trust, Devon's Firefighters, The BBC, and most interestingly in the case of North-East Lincolnshire Council.

1) Please provide me with your policy on this subject.

2) In cases of Employment dispute since 2009, how many "Compromise Agreements" form part of the final agreements or settlement?

Yours faithfully,

John Rudkin

Customer First, Blackpool Borough Council

Dear Mr Rudkin

Thank you for your e-mail which has been forwarded to our corporate
applications support service who will deal with your enquiry in due
course.

Regards Mike
Customer Services Specialist

dangos adrannau a ddyfynnir

Gadawodd John Rudkin anodiad ()

I will assume that because of the following link and previously answered FOI, that Blackpool Council will choose not to respond:

http://wirralinittogether.wordpress.com/...

The following local authorities relied on various exemptions within the Act to withhold the information. Most common was the Costs Exemption, where it was claimed that finding and supplying the information would take more than 18 hours of officer time – the equivalent of £450 in costs.

These were taken all the way to appeal at the Information Commissioner’s Office, but with mixed results:

English 2006 to 2011 Exemption
Local Number of or reason
Authority Compromise
Agreements issued in
dispute circumstances

Blackpool Borough Council 0 Cost of locating data

I'm guessing if the cost of locating the data is a problem, there have to have been a large number? Of course, the Council can choose to prove otherwise.

Dear Customer First,

I have still not received a response to my enquiry.

Yours sincerely,

John Rudkin

Debbie Topping, Blackpool Borough Council

Mr John Rudkin

Via email

[1][FOI #154951 email]      Our Ref:
13/221/JR/LW/F21

Your Ref: 00000

Direct Line: 01253 478980

Email: [email address].uk 
Dear Mr Rudkin

       
FREEDOM OF INFORMATION ACT 2000 – INFORMATION REQUEST

In accordance with s.50 of the Act, I have considered your appeal in
relation to provision of information.

My decision is that your appeal is unsuccessful.  I will explain my
decision.

You submitted a request on 27th March 2013 to the Council.  The Council’s
Legal Service provided a response, albeit directly to your private email
account (…[email address]) on 28th March 2013.  This is within the legislated
timescale and includes information which answers the questions you asked. 
For clarity, the Council does not have a documented policy on this
subject.

It is acknowledged that the council’s FOI reference number (13/221/JR/LW)
was not included in this response and the Council failed to include the
additional information regarding your rights to request a review or submit
a complaint.  This will be addressed in our on-going training and
awareness programme.

For completeness, I have copied the response of 28th March here.  I have
removed a portion of your direct email address to afford some privacy to
you in respect of this email account.

dangos adrannau a ddyfynnir

Dear Customer First,

I received this message, but there is nothing there?

You have a new response to the Freedom of Information request
'Gagging Orders' that you made to Blackpool Borough Council.

To view the response, click on the link below.

https://www.whatdotheyknow.com/request/g...

When you get there, please update the status to say if the response
contains any useful information.

Although all responses are automatically published, we depend on
you, the original requester, to evaluate them.

-- the WhatDoTheyKnow team

Yours sincerely,

John Rudkin

Gadawodd John Rudkin anodiad ()

Further information regarding the contorted route to trying to obtain information:

From: John Rudkin <johnar@me.com>
Subject: Re: Whistle Blowing and "gagging"
Date: 29 March 2013 08:15:58 GMT
To: Paul Mottershead <paul.mottershead@blackpool.gov.uk>

Dear Mr Mottershead,

Many thanks for your clarification. I am surprised to hear that Mr Hirst has left Blackpool Council, and hope it had nothing to do with his earlier ill health? Please pass on my best wishes to him. It is a shame we were never able to meet.

Can you tell me when he left? This is the first notification I have had of this fact, and I have been communicating with him on the understanding that he was handling my case (since you handed over the case to him in 2012). Please provide me with the date at which the change of responsibility was made.

While I accept that the definition and application of compromise agreements is used to safeguard the Council, and it is totally acceptable practice when used to ensure prudency, statute and case law, I am concerned that in my case there is an issue relating to the use of public monies, and that this is the main driver for the use of those compromise terms.

You say that an employee is only allowed to sign a compromise agreement after they receive independent legal advice. In my case legal advice was, as you are aware, not to sign for reasons highlighted firstly, by Unison's advice, and in the subsequent version, by the solicitor concerned at the time. Mr Hirst was insistent that without this being agree "in full" there would be no compromise "at the instruction of our client". You left me with option, although I did offer one to Blackpool Council at the time.

I have to continue to question the statement regarding what Blackpool Council do apply compromise agreements to, and can only disagree that in my case, this is not correct: "For example issues or concerns about safeguarding practices or service failures are not the subject of compromise agreements."

I will, as per my work, remove the FOI enquiry, however for transparency I will post your response in full. If you do not agree with me doing this, I will await the official response.

Again, thanks for your email.

One more question (returning to my initial query), are you happy to make the document exchange next week as I requested?

Yours sincerely

John Rudkin

__________________________________________________________________

The FULL Text of the Gagging Order, no longer under a confidentiality order follows. NOTE the objectionable part, and the only element I disagreed with is highlighted below. I engaged a solicitor, as required under the rules of Blackpool's Confidentiality Agreement terms who advised me NOT TO SIGN. Blackpool Council would not accept a legally agreeable compromise drafted with my, and my legal rep[resentatives approval.

She referred to the wording as "Draconian" and "unacceptable". See what you think?

"The Employee agrees that the terms of this Agreement (including in particular the amount of Compensation Payment (£15,000), the fact that this matter has settled and the fact that money is to be paid to the Employee), and the circumstances of these proceedings shall remain confidential and shall not be divulged to any person by the Employee except to their representative in the course of these proceedings or as required by law or to their immediate family. The Employee further agrees that from the date hereof he will not, whether directly or indirectly, make, publish, use websites, social networks, blogs, or any other form of media or otherwise communicate any remarks or statements whether in writing or otherwise, concerning matters or events during any point of his employment with the Employer or any of their officers, employees or former officers or employees or associated companies. For the purpose of clarity this period of employment covers the dates from 9 June 2003 to 10 July 2011. The Employee will not use, publish, disseminate or share any information whether picture, audio, video or data or any information howsoever obtained or produced while in his capacity as an Employee of the Employer. For the avoidance of doubt the Employee shall remove from his existing website any
information relating to his employment at Blackpool Council within a period of 14 days from the date of signing this agreement. The sole exclusion to this requirement being that the Employee may state the dates and capacity of his employment with the Employer. In the event that the Employee shall be in breach of the requirement of confidentiality in this clause or in breach of any other provisions in the clause the sum paid at clause 3 shall become immediately repayable by the Employee to the Employer. This sum will be recoverable by the Employer as a debt and an injunction will also be an additional remedy. Clause 4 of this agreement shall otherwise remain fully in effect and the Employee shall not be entitled to rely upon any breach by him of this Agreement in order to initiate proceedings or any related claims or actions."
___________________________________________________________________

The FULL text:

WITHOUT PREJUDICE
COMPROMISE AGREEMENT
1.
2.
This Agreement dated 2012 is made between Blackpool Borough Council (the "Employer") of PO Box 11 Town Hall, Blackpool, FY1 1NB and John Rudkin (the "Employee") of 45 Folkestone Road, Lytham St Annes, Lancashire FY8 3EH in the terms set out below.
The Employee's employment with the Employer terminated on 10 July 2011 (“the Termination Date”) by reason of redundancy. The Employee by signing this Agreement acknowledges that salary and all contractual benefits have been provided up to this date. The Employee agrees that they waived their right to both contractual and statutory notice of termination of employment.
Without admission of any liability by the Employer the Employer shall pay the applicant the sum of £15, 000 (fifteen thousand pounds (the Compensation Payment).
The Employee agrees to accept the compensation payment in full and final settlement of his claim before the Manchester Employment Tribunal ( case number 2408808/2011 ) and all claims which the Claimant may have arising out of his employment and/or the termination of his employment and
3.
4.
WITHOUT PREJUDICE a) his prospective claim(s) for >
Description of Claim
Suffer a detriment and/or dismissal resulting from a failure to allow an employee to be accompanied or to accompany a fellow employee at a disciplinary/grievance hearing
Application by an employee, their representative or trade union for a protective award as a result of an employer's failure to consult over a redundancy situation
Breach of Contract
Failure of the employer to consult with an employee representative or trade union about a proposed contracting out of a pension scheme
Suffered a detriment, discrimination and/or dismissal on grounds of disability or failure of employer to make reasonable adjustments
Suffered a detriment and/or dismissal resulting from requiring time off for other (non-work but not Health and Safety) duties, study, training or seeking work
Discrimination or victimisation on grounds of religion or belief Discrimination or victimisation on grounds of sexual orientation
Failure to provide equal pay for equal value work
Failure of the employer to consult with an employee rep. or trade union about a proposed transfer
Suffer a detriment and/or dismissal for claiming under the flexible working regulations or be subject to a breach of procedure
Failure to pay remuneration whilst suspended from work for health and safety reasons whilst pregnant or on mat. leave
Failure to provide a written statement of terms and conditions and any subsequent changes to those terms
Suffered less favourable treatment and/or dismissal as a fixed term employee, than a full time employee
Failure to allow time off for trade union activities or duties, for ante-natal care or for public duties
Failure to pay remuneration whilst suspended for medical reasons
Originating Legislation (abbreviations explained at end of agreement)
EReIA 1999 Sec 10 - 15
TULR (C)A 1992 Sec 189
ETA 1996 Sec 3
SSPA 1975
DDA 1995
Sec 4(2), 4(1) & 6
ERA 1996
Sec 46, 47, 58, 61 & 63A- C
E E (Religion or Belief) Regs 2003
E E (Sexual Orientation) Regs 2003
EPA 1970 Sec 2(1)
TUPE 1981
Sec 10, 10a & 11(1)
FWR 2002
Regs 6, 14.2, 14.4 & 16.3
ERA 1996 Sec 68
ERA 1996 Sec 1 & 4
FTE 2002 Reg 7
TULR (CA) 1992 Sec 168 - 171 ERA 1996
Sec 50, 51, 55-56
ERA 1996 Sec 64
Failure to allow time off to seek work during a redundancy situation
ERA 1996 Sec 52 & 53
Failure to provide a written pay statement or an adequate pay statement
ERA 1996 Sec 10 & 11
Failure to provide a written statement of reasons for dismissal or the contents of the statement are disputed
ERA 1996 Sec 92 & 93
Failure to pay for or allow time off to carry out Safety Rep duties or undertake training
EPA 1970 Sec 2 (1)
Suffer a detriment, dismissal or redundancy for health and safety reasons
ERA 1996
Sec 44, 100 & 136
Loss of office as a result of the reorganisation of a statutory body
Miscellaneous statutes
Suffer a detriment and/or dismissal on grounds of pregnancy, child birth or maternity
ERA 1996
Sec 48, 74c, 79, 92(4) & 99

WITHOUT PREJUDICE
Appeal against an enforcement or penalty notice issued by the Inland Revenue
Suffer a detriment and/or dismissal related to failure to pay the minimum wage or allow access to records
Failure of the employer to prevent unauthorised or excessive deductions in the form of union subscriptions
Suffered a detriment and/or dismissal due to exercising rights under the Public Interest Disclosure Act
Suffer a detriment and/or dismissal due to requesting or taking paternity or adoption leave or time off to assist a dependant
Suffer less favourable treatment and/or dismissal as a result of being a part time employee by comparison to a full time employee
Failure to pay a redundancy payment
Discrimination or victimisation on grounds of race or ethnic origin Suffer a detriment and/or dismissal for refusing to work on a Sunday
MPL 2002 Reg 18
NMWA 1998 Sec 22
ERA 1996 Sec 104A
TURER 1993 Sec 15(68)
ERA 1996
Sec 47B & 103A
ERA 1996 Sec 57A,EReIA 1999 Sch 4, Sec 76 & 80
MPL 1999 Regs 13-16
PAL 2002 Sec 28-29
PTW 2000 Reg 5-8
ERA 1996 Sec 163-164
RRA 1976 Sec 54 & 64
ERA 1996
Sec 44, 45, 101
SDA 1975 Sec 6 & 10 SDA 1986 Sec 4c
FTE
Regs 2002
TULR (C)A 1992 Sec 137
TULR (CA) 1992
Sec 46, 66, 146, 152 & 174
TULR (C)A 1992 Sec 138
TCA 2002
Sec 27 & Sch 1
ERA 1996 Sec 104
ERA 1996 Sec 94 or TUPE 1981 Reg 8
TULR 1992 Sec 238a
ERA 1996 Sec 13-27 or CEC 1975 Reg 42
WTR 1998
Regs 4, 6, 10, 12-17
Discrimination or victimisation on grounds of sex, marriage or transgender
Suffered less favourable treatment and/or dismissal as a temp. employee than a full time employee
Suffer discrimination in obtaining employment due to membership or not- membership of a trade union
Suffer a detriment and/or dismissal relating to being, not being or proposing to become a trade union member
Suffer discrimination in obtaining the services of an employment agency due to membership or non-membership of a trade union
Suffered a detriment and/or dismissal due to exercising rights under the Tax Credits Act
Unfair dismissal after exercising or claiming a statutory right
Unfair dismissal on grounds of capability, conduct or some other general reason including the result of a transfer of an undertaking
Unfair dismissal in connection to a lock out, strike or other industrial action
Failure of employer to pay or unauthorised deductions have been made
Failure to limit weekly or night working time, or to ensure rest breaks or annual leave entitlement
Any claims for physical or psychiatric illness relating to any acts of discrimination
Any stress related claims and/or any claims relating to depression Any other personal injury claims

WITHOUT PREJUDICE
b) The Employee warrants that they know of no other potential claims that they may bring. The Employee further warrants that they are not contemplating any other actions than those listed above in this clause.
The Employee warrants that the Employer has faithfully and diligently exercised their duty of care throughout the contract of employment, with particular respect to the management of ill health / sickness absence. The employee is not, at present, aware of any claims in respect of personal injury, stress, anxiety and/or work related or induced injury or illness (whether physical or psychological).
Claims in respect of pension entitlement and any free standing personal injury claim are specifically excluded from this Agreement.
The Employer enters into this Agreement and makes the payment set out in clause 3 without any admission of liability whatsoever by the Employer.
5. The parties understand that in accordance with chapter 3 part 6 of the Income Tax [Earnings and Protection] Act 2003, and Section 148 of the Income and Corporation Taxes Act 1988 that the amount of the settlement
WITHOUT PREJUDICE
6.
monies up to £30,000 will be paid free of tax and national insurance. Any excess above £30,000 will be subject to income tax and national insurance. The Employee will be responsible for the payment of any tax and national insurance contributions due in respect of the compensation payment. The Employee agrees to indemnify the Employer and keep the Employer indemnified on a continuing basis against all liabilities to taxation as set out in clause 18 of this Agreement.
The payment will be made within 21 days of receipt of the Agreement by the Employer duly signed by the Employee and their Adviser.
The sum paid at 3 above shall become immediately repayable by the Employee to the Employer should the Employee at any time following the signature of this Agreement pursue a claim against the Employer or their officers or employees relating to any of the matters set out in 4 above against the Employer or if the Claimant is in breach of the terms of this agreement. This sum will be recoverable by the Employer as a debt. In the event of an Employee breaching this agreement by instituting legal proceedings this agreement will be used in evidence by the Employer to attempt to strike out or stop the proceedings and to mitigate the Employers loss from an award that may be made.
The parties to this Agreement believe the following statements to be true:-
7.
WITHOUT PREJUDICE
a) That the Employee has received independent legal advice from a relevant independent adviser (within the meaning of the Employment Rights Act 1996, as amended) as to the terms and effect of this Agreement and in particular its effect on his ability to pursue his rights before an Employment Tribunal (“the Advice”);
b) The relevant independent adviser referred to in paragraph (a) is
(“the Adviser”);
c) There was in force, when the Adviser gave the Advice referred to in paragraph (a) a contract of insurance or an indemnity provided for members of a profession or professional body covering the risk of a claim by the Employee in respect of loss arising in consequence of the Advice.
8. The Adviser by signing this Agreement warrants that the circumstances set out in 7 above are correct.
9. The Parties believe this Agreement satisfies, and was intended to satisfy, the conditions for regulating compromise Agreements contained in Section 77 of the Sex Discrimination Act 1975, Section 72 of the Race Relations Act 1976, Section 288 of the Trade union and Labour Relations (consolidation)
WITHOUT PREJUDICE
Act 1992, Section 9 of the Disability Discrimination Act 1995, Section 203 of the Employment Rights Act 1996, Section 49 of the National Minimum Wage Act 1998 and Regulation 35 of the Working Time Regulations 1998 and other appropriate statutory provisions.
10.
10. The Employer will contribute up to a maximum of £250.00 (exclusive of VAT)
towards the legal costs of the Employee in relation to entering into this Agreement, payment to be made within 7 days of receipt by the Employer of an invoice from the Adviser marked payable by the Employer.
11. On or before 14 days from receipt of this Agreement by the Employer duly signed by the Employee and his adviser date the Employee will return to the Employer all books, files, documents, papers, materials, computer equipment, disks, mobile telephones, security cards, credit cards, and any other property belonging to or relating to the business of the Employer. The Employee undertakes that they will not make or retain copies of any property and further undertakes that they will return such property which subsequently comes into their possession or control in the future.
12. With effect from the termination date the Employer shall cease to provide any benefits, whether contractual or otherwise, to or for the Employee. For the avoidance of any doubt the Employer shall cease to provide any pension or benefits with effect from the termination date.
WITHOUT PREJUDICE
13.
The Employee agrees that the Employer can deduct outstanding expenses which the Employee has failed to account for in the correct way, from the compensation payment, in the event that no relevant receipts or proofs are received by the Employer on the date the compensation payment becomes payable.
The Employee agrees that the terms of this Agreement (including in particular the amount of Compensation Payment, the fact that this matter has settled and the fact that money is to be paid to the Employee), and the circumstances of these proceedings shall remain confidential and shall not be divulged to any person by the Employee except to their representative in the course of these proceedings or as required by law or to their immediate family. The Employee further agrees that from the date hereof he will not, whether directly or indirectly, make, publish, use websites, social networks, blogs, or any other form of media or otherwise communicate any remarks or statements whether in writing or otherwise, concerning matters or events during any point of his employment with the Employer or any of their officers, employees or former officers or employees or associated companies. For the purpose of clarity this period of employment covers the dates from 9 June 2003 to 10 July 2011. The Employee will not use, publish, disseminate or share any information whether picture, audio, video or data or any information howsoever obtained or produced while in his capacity as an Employee of the Employer. For the avoidance of doubt the Employee shall remove from his existing website any
14.
WITHOUT PREJUDICE
information relating to his employment at Blackpool Council within a period of 14 days from the date of signing this agreement. The sole exclusion to this requirement being that the Employee may state the dates and capacity of his employment with the Employer. In the event that the Employee shall be in breach of the requirement of confidentiality in this clause or in breach of any other provisions in the clause the sum paid at clause 3 shall become immediately repayable by the Employee to the Employer. This sum will be recoverable by the Employer as a debt and an injunction will also be an additional remedy. Clause 4 of this agreement shall otherwise remain fully in effect and the Employee shall not be entitled to rely upon any breach by him of this Agreement in order to initiate proceedings or any related claims or actions.
15The Employer will only divulge the details of this Agreement to the relevant officers of the authority, and any legal representatives engaged and involved in the negotiation and conclusion of the Agreement. Following conclusion of the Agreement the Employer will keep the Agreement confidential save where it must be disclosed to a statutory body, the Inland Revenue or a Court of Law.
16. The Employee accepts that he/ will be responsible for the payment of all tax or employee National Insurance payments (including, without limitation an amount equivalent to any interest, penalties or fines in connection therewith) imposed by a competent authority in respect of any payment or provision of
WITHOUT PREJUDICE
any benefit set out in this Agreement and will indemnify the Employer for an amount equivalent to employers National Insurance payments (including without limitation, an amount equivalent to any interest, penalties or fines in connection therewith) imposed by a competent authority in respect of any payment or provision of any benefit relating to any payment or provision of any benefit as set out in this Agreement and he/she agrees to indemnify the Employer on a continuing basis against taxes, payments, interest, penalties or fines imposed by any competent authority by reason of his receipt of or entitlement to any such payment or benefit.
Signed ..............................................................................................The Employee
Signed ...............................................................................................For the Employer
Signed ...............................................................................................The Adviser
WITHOUT PREJUDICE
Legislation - Abbreviation and Full Title
CEC 1975
COMAH 1999
DCOA 1994
DDA 1995
DRC 1999
EE(ReligionorBelief)Regs 2003
EE (Sexual Orientation) Regs 2003
EPA 1970 ERA 1996 ERelA1999 ETA 1996 FTE 2002 FWR 2002
HSCE 1996 HSWA 1974 MPL 1999 MPL 2002 NESE 1994 NMWA 1998 PAL 2002 PIDA 1998 PTW 2000 RRA 1976 SDA 1975 SRSCR 1977 SSPA 1975 STA 1994 TCA 2002
Colleges of Education (Compensation) Regulations 1975 Control of Major Accident Hazards Regulations 1999 Deregulation and Contracting Out Act 1994
Disability Discrimination Act 1995
Disability Rights Commission Act 1999 EmploymentEquality(ReligionorBelief)Regulations2003
Employment Equality (Sexual Orientation) Regulations2003
Equal Pay Act 1970
Employment Rights Act 1996
Employment Relations Act 1999
Employment (Industrial) Tribunals Act 1996
Fixed Term Employees (Prevention of Less Favorable Treatment) Regulations 2002
Flexible Working (Procedural Requirements) Regulations 2002 and Flexible Working (Eligibility, Complaints and Remedy) Regulations 2002
Health and Safety Consultation with Employee Regulations 1996 Health and Safety at Work Act 1974
Maternity and Parental Leave Regulations 1999
Maternity and Parental Leave (Amendment) Regulations 2002 Notification of Existing Substances (Enforcement) Regulations 1994 National Minimum Wage Act 1998
Paternity and Adoption Leave Regulations 2002
Public Interest Disclosure Act 1998
Part Time Worker (Prevention of Less Favourable Treatment) Regulations 2000 Race Relations Act 1976
Sex Discrimination Act 1975
Safety Representatives and Safety Committees Regulations 1977
Social Security Pensions Act 1975
Sunday Trading Act 1994
Tax Credits Act 2002
TULR(C) 1992 TUPE 1981 TURER 1993 WTR 1998
Trade Union and Labour Relations (Consolidation) Act 1992
Transfer of Undertakings (Protection of Employment) Regulations 1981 Trade Union Reform and Employment Rights Act 1993
Working Time Regulations 1998
WITHOUT PREJUDICE
Art = (Article) Par = (Part) Reg = (Regulation) Sec = (Section) Sch = (Schedule)
WITHOUT PREJUDICE


Gadawodd John Rudkin anodiad ()

Coincidentally, this appeared in the local press today: http://www.blackpoolgazette.co.uk/news/b...

Make you own minds up.