Phased return to work provisions following sickness absence
Dear Billingham Town Council, following absence due to ill health, we learned that your Clerk (AKA “Executive Officer”) is on a phased return to work, with reduced hours compared to the 37 hour full time working week.
(1) Since returning to work, how many weeks has the Clerk been authorised to work at reduced hours until the Town Council will require her to return to a full time 37 hour working week?
(2) Is the maximum permissible duration for a phased return to work (following sickness absence) contractually stipulated, or has the Town Council set no limits on the duration of phased returns to work?
(3) Is/was the Clerk being paid her full salary (applicable for a 37 hour working week) for the duration of her phased return to work?
Thank you
Kevin Bowler
Chair, North Billingham Residents Association.
I reply to this request on behalf of Billingham Town Council from a
resolution made at the Town Council meeting held on 30 January 2018.
The council's observations and reply is as follows:
The information requested is deemed as sensitive data, as defined in the
DPA section 2.
Personal information of this nature regarding an employee of the council
is exempt as per Freedom of Information Act 2000, section 40 (2) and
section 40(3)(a)(i)
Taking into consideration the above,disclosure is unlikely to be fair.
Kind regards,
Dianne
Dianne Rickaby
Executive Officer/ Responsible Finance Officer
to Billingham Town Council
01642 551171
07501460006
on behalf of Billingham Town Council
Disclaimer: This e-mail may contain confidential and/or privileged
information. If you have received it in error, please notify the sender
and delete it from your system. Any unauthorised use, disclosure or
copying is not permitted. Please be aware that e-mail communication is
not guaranteed to be secure. This e-mail has been checked for viruses but
no responsibility is accepted for any damage caused by transmission of
this e-mail. Opinions expressed may be those of the author and do not
necessarily represent the view of Billingham Town Council.
Dear Billingham Town Council, North Billingham Residents Association do not agree with your assertion that the information requested is of a personal sensitive nature and take the view that your response is misinformed.
I am therefore writing on behalf of North Billingham Residents Association to request an internal review of Billingham Town Council's handling of this FOI request.
We call on the Internal review meeting members to consider the issues below and direct the acting FOI officer to provide the actual information requested.
We do not agree with your assertion that the information requested is deemed as sensitive data, as defined in the Data Protection Act 1998 section 2: None of the information requested seeks data about racial or ethnic origin; political opinions; religious beliefs or other beliefs of a similar nature; trade union membership; physical or mental health or condition; sexual life; the commission or alleged commission by the data subject of any offence; or any proceedings for any offence committed or alleged to have been committed by the data subject, the disposal of such proceedings or the sentence of any court in such proceedings. Consequently, there is no need to consider applying any interest test in that regard.
The number of weeks the Clerk was authorised to work at reduced hours is or ought to be information about a decision taken by the Town Councillors by resolution. A figure quoting a number of weeks or months was sought- or clarification that the Clerk was given permission to choose how long she wanted to work reduced hours. None of the above could feasibly be deemed to be personal data or sensitive personal data relating to an individual.
The next question asked “Is the maximum permissible duration for a phased return to work (following sickness absence) contractually stipulated or has the Town Council set no limits on the duration of phased returns to work”. It applies to all paid employees of the Town Council. Unless, there is variance between employee contracts, it could be answered with a "Yes" and a figure in weeks or months- or "No". Neither would amount to be personal or personal sensitive data.
The question Is/was the Clerk being paid her full salary (applicable for a 37-hour working week) for the duration of her phased return to work, is also about a decision that should have been given by the Town Councillors by resolution. It could potentially be accurately answered simply with Yes or No. As stated previously, the answer to this question cannot be used to obtain specific information about an individual which amounts to personal or sensitive personal data relating to such an individual. We have not asked for actual earnings to be stated. Nor have we asked what percentage or proportion of the full time salary is/was being paid during the phased return to work.
Yours faithfully,
Kevin Bowler
Dear Mr Bowler
With reference to the above request it was discussed at our Town Council
meeting on 27 February 2018, council have asked me to reply on their
behalf.
Payments have been made in accordance with the National Scheme of
Conditions of Service and that nothing other than that permitted by the
Scheme has been paid.
Yes, the rate of pay of senior staff is subject to scrutiny but deductions
from pay are personal and I believe do not need to be divulged.
Please be aware that certain information you have requested is ‘personal
data’ as defined by the Data Protection Act 1998 and as such is exempt
from disclosure pursuant to s.40 of the Freedom of Information Act 2000
Cllr Sheila Smart
Chairman to Billingham Town Council
Dear Sheila Smart, your comments are noted. However, the agenda for the meeting you referred to had no designated item listed for discussion of the internal review sought or even for the FOI request itself. A member of the public who was in attendance had no recollection of any discussion taking place about this FOI request. These events raise a number of questions, but we will put these aside at the present point.
Neither of the BTC responses to this FOI have provided the information requested, nor have they provided any valid reasons for any exemptions to be applied with reference to relevant parts of the FOI Act 2000. We clarified what we were asking for in the suggested terms of reference for the internal review we called on you to carry out. Despite this, you continue to assert that we are seeking personal data when we are not. We did not ask if payments have been made in accordance with the National Scheme of Conditions of Service. Nor did we ask for actual rates of pay or details of deductions from "senior staff" pay.
Your unwillingness to hold an internal review has been noted. North Billingham Residents Association take the view that you have failed to understand and comply with your obligations of as defined in the Freedom of Information Act 2000.
Yours sincerely,
Kevin Bowler
Gadawodd Kevin Bowler anodiad ()
Here are the details of the correspondence to the Information Commissioner:
I am writing to you on behalf of North Billingham Residents Association (NBRA) to log a complaint over the refusal of Billingham Town Council (BTC) to answer our Freedom of Information Request and call on you to issue a notice to them to comply.
The FOIR was as follows:
Following absence due to ill health, we learned that your Clerk (AKA “Executive Officer”) is on a phased return to work, with reduced hours compared to the 37 hour full time working week.
(1) Since returning to work, how many weeks has the Clerk been authorised to work at reduced hours until the Town Council will require her to return to a full time 37 hour working week?
(2) Is the maximum permissible duration for a phased return to work (following sickness absence) contractually stipulated, or has the Town Council set no limits on the duration of phased returns to work?
(3) Is/was the Clerk being paid her full salary (applicable for a 37 hour working week) for the duration of her phased return to work?
How were we expecting the responses to be characterised?
For (1) we were seeking a simple figure for the maximum number of weeks authorised before the Clerk was expected to work for her full 37 hours per week, or a statement that no authorisation with a defined number of weeks had been agreed.
For (2) we were seeking either confirmation that a specific period allowable for phased returns to work is, or is not defined in Town Council staff contracts.
For (3) we were seeking a response that stated the Clerk was either receiving her full salary or reduced salary whilst employed on a phased return to work.
Taking this into account, our complaint is as follows:
• BTC did not provide any information in the initial response, arguing that “sensitive” personal data was being sought.
• BTC refused to hold an internal review and it is not clear who in the council took that decision as there are doubts that it was discussed at all in the Council meeting of 27 February 2018.
• BTC still did not provide the actual information requested after responding to the call for an internal review.
We would also draw your attention to the following points:
Their second response continued to assert that some of the information sought was sensitive personal data. We did not ask for details of pay rates and deductions or if these were made in compliance with “the National Scheme of Conditions of Service” as quoted in it.
The suggested terms of reference for the refused internal review clarified what information is being sought and why none of it constitutes personal data. These were either ignored or failed to be understood by the people responsible in the Town Council who discussed the request for a review.
Neither of BTC’s responses follow approved practice and make the requester aware that they can appeal against decisions to refuse to supply FOI data requested to the Information Commissioner.
A copy of the Council’s sickness and absence policy is attached.
https://drive.google.com/file/d/0Byp8QiG...
The policy states that phased return to work following sickness absence is an option but gives no further detail.
It is noticeable that it was written by the “Executive Officer” (The Clerk) but she makes no provision in it for dealing with her own sickness absence. Most town and Parish Council policies require the Clerk to report to the Chair of the Council or Chair of staffing committee if absent from work.
As written, it would appear that the policy requires the Clerk to conduct a return to work interview with herself ! The Town Councillors do not appear to have been concerned about that , assuming any of them actually read the policy document attached which says it had approval from them.
Gadawodd Kevin Bowler anodiad ()
Update: The complaint has been accepted as eligible for further consideration by the Information Commissioner and will be allocated to a case officer as soon as possible. Case Reference Number FS50734649
Gadawodd Kevin Bowler anodiad ()
The minutes of the April 2018 Billingham Town Council meeting state:
"FC1550/18 EXECUTIVE OFFICER’S UPDATE Freedom of Information Requests
North Billingham Residents Association have referred three Freedom of Information Requests to the Information Commissioner's Office. It was requested that the Town Council carry out an internal review to the previous response to these request’s.
This is factually inaccurate by the Clerk (AKA "Executive Officer") : At the time of writing,
(1) no request to carry out a second internal review has come from a case officer.
(2) Nobody has yet been assigned to deal with our complaint about this Freedom of Information request.
A Case officer for the Information Commissioner has only instructed the Town Council to hold one internal review over the request for a copy of the John Whitehead Park Management Agreement - not this one.
__________________________________
Dear Mr. Bowler,
Following the Billingham Town Council meeting held on Tuesday 31st July 2018 it was agreed that our response was as outlined below:
1. We will not be supplying a response to this question as we believe that this constitutes personal data as defined in Section 40. This is currently with a caseworker at the ICO for review and we are awaiting their decision.
2. Billingham Town Council sets no limits on a phased return to work. This is decided on a case by case basis in consultation with the employee and relevant medical information from Health Care Professionals.
3. Full salary was paid with agreement from full Town Council.
Gadawodd Kevin Bowler anodiad ()
The Information Commissioner issued a decision notice and ruled that the correct response to the first part of this should have been for the Town Council to refuse to confirm or deny that a decision had been given about the duration agreed for a phased return to work.
Gadawodd Kevin Bowler anodiad ()
It was agreed at the North Billingham Residents Association (NBRA) meeting of 17/09/18 that the decision notice ruling by the ICO was flawed and based on false assumptions. An appeal against the decision notice would be lodged with the First-tier Tribunal (Information Rights) GRC & GRP Tribunals. The ICO informed NBRA that it does not revise decision notices.
Gadawodd Kevin Bowler anodiad ()
Partial content of ICO decision notice is shown below: The appeal against its ruling has been submitted:
Decision (including any steps ordered)
1. The complainant has requested from Billingham Town Council (the Council) information in relation to a phased return to work from long-term absence of a specific Council employee. The Council provided parts of the information requested and decided to withhold the remainder relying on section 40(2) (personal information), stating that it contains sensitive personal data.
2. The Commissioner has exercised her discretion to consider section 40(5) (personal information). Her decision is that section 40(5) is engaged and that the Council should have refused to confirm or deny whether it held the requested information.
3. The Commissioner also found that the Council has breached the requirement of section 17(7) by failing to inform the complainant of his right to complain to the Commissioner.
4. The Commissioner does not require the Council to take any steps to ensure compliance with the legislation.
Reasons for decision
Section 40(5) – Personal information
14. The Commissioner has discretion to consider exemptions not cited by the public authority. Given her role as the data protection regulator, the Commissioner will in particular consider whether to exercise that discretion to consider any limb of section 40 where necessary to avoid any breach of data protection law.
18. On the issue of whether confirmation or denial in response to the complainant’s request would involve a disclosure of personal data, the definition of personal data is given in section 1(1) of the Data Protection Act 1998 (DPA). Whilst the DPA 1998 has since been replaced, as it applied at the time of the complainant’s information request it is relevant here. Section 1(1) of the DPA states that:
“‘personal data’ means data which relate to a living individual who can be identified:
(a) from those data, or
(b) from those data and any other information which is in the possession of, or is likely to come into the possession of, the data controller”
19. Complying with section 1(1)(a) in this case would effectively also confirm or deny whether the individual mentioned in the request had been on a long-term sickness absence. Clearly this information would both relate to and identify that individual and so would be their personal data.
20. Section 2 of the DPA sets out what categories of personal data are classed as sensitive for the purposes of that Act. This includes personal data as to an individual’s physical or mental health or condition. The personal data in question here is, therefore, sensitive.
Gadawodd Kevin Bowler anodiad ()
Reasons for appeal against the decision notice ruling conveyed to the Tribunal:
(a) In the decision notice the ICO argued that this information would both relate to and identify that individual and so would amount to personal data.
(b) We think this is a misconceived assertion. The conceivable information requested would be expressed as one of the three options below:
(i) The Council did not make a decision about the duration of the phased return to work
(ii) The Council decided that no time limit would apply to the duration of the phased return to work.
(iii) The Council ruled that a phased return to work would be permitted for a specified duration i.e a number followed by a unit of time such as 4 weeks or 60 days or 3 months etc.
c) We think that none of the above options given as responses would amount to the disclosure of personal data.
(d) In summary, the information requested is either a council decision with or without a duration, or a statement that no decision was made.
(e) The information requested, if given within the scope the response types above does not identify, nor is it identifiable to an individual.
(f) The ICO appear to have erroneously assumed that we suspected, but were not certain that the Clerk had been subject to sickness absence.
(g) The Town Council themselves confirmed the sickness absence and placed it in the public domain via the Chairman's annual report which is supplied, and at the time of writing can be downloaded from the Town Council website.
(h) Article 20 of the decision notice states:
"Section 2 of the DPA sets out what categories of personal data are classed as sensitive for the purposes of that Act. This includes personal data as to an individual’s physical or mental health or condition. The personal data in question here is, therefore, sensitive".
(i) The text above suggests that the ICO has a flawed understanding of the FOIR request. No part of the request sought information about and individuals physical or metal health or condition. The fact that the individual had been absent through sickness had been declared by the Town Council in the public domain.
(j) Article 19 if the decision notice states: Complying with section 1(1)(a) in this case would effectively also confirm or deny whether the individual mentioned in the request had been on a long-term sickness absence. Clearly this information would both relate to and identify that individual and so would be their personal data.
(k) As in article 20, this further suggests that the ICO has either been misled was unaware that absence through sickness had been already been declared by the Town Council in the public domain before the FOI had been submitted.
Gadawodd Kevin Bowler anodiad ()
The full decision notice that has been referred to the Tribunal can be viewed via this link https://ico.org.uk/media/action-weve-tak...
Gadawodd Kevin Bowler anodiad ()
The outcome of the Tribunal appeal EA/2018/0203 was released and can be summarised as:
"We conclude that the information requested was sensitive personal data.
The tribunal concludes that the Commissioner’s decision was correct and we dismiss the appeal. Our decision is unanimous. "
in the appeal documentation the Tribunal assert "That personal data is, in our view, sensitive personal data because it consists of information as to the individual’s physical or mental health or condition. Information as to the number of weeks an individual has been authorised to work at reduced hours during a phased return following absence due to ill health would confirm or deny to the public that the individual had been absent due to ill health and would give some indication of the severity of the condition. The issue of whether or not this information was already in the public domain is not relevant to the question of whether or not it amounted to information about an individual’s health and is therefore sensitive personal data."
We work to defend the right to FOI for everyone
Help us protect your right to hold public authorities to account. Donate and support our work.
Donate Now
Gadawodd Kevin Bowler anodiad ()
The Information Commissioner has been contacted with:
A complaint over the refusal of Billingham Town Council (BTC) to answer this Freedom of Information Request and:
A call on them to issue a notice on BTC to comply.