Discrimination claims by type and year

The request was partially successful.

Dear Network Rail Limited,

Please would you state the number of discrimination claims brought against you in UK courts and/or tribunals, split out by "protected characteristic".

Please do this for each year since the Equality Act 2010 came into force.

Please say what happened to each case i.e. whether it was lost, won or settled by you.
Please say how much, if anything, you paid in order to settle.

If you do not have data for each and every year, please disclose what data you do have.

Please also say how much you have spent on administration and/or defence of these claims, showing clearly what has been paid to the supply chain, including but not limited to solicitors and other advisors.

Yours faithfully,

Kate Breed

FOI, Network Rail Limited

Reference number: FOI2018/00378

Dear Kate

Information request

Your correspondence was received by Network Rail on 27th March 2018. I can confirm that your request is being processed under the terms of the Freedom of Information Act (FOIA). I will endeavour to respond to you as soon as possible and in any event by 26th April 2018.

On occasion we may need to consult with third parties about requests, in line with the recommendations in the Code of Practice issued by the then Secretary of State for Constitutional Affairs.

If you have any queries please do not hesitate to contact me.

Please remember to quote your reference number in all future communications.

Yours sincerely

Claire Duncan | Information Officer
Freedom of Information | Legal & Corporate Services

Network Rail | 1st Floor | Willen Building | The Quadrant: MK
Elder Gate | Milton Keynes | MK9 1EN
External 01908 782 405 | Internal 085 22405
Email: [Network Rail request email]
Web: http://www.networkrail.co.uk/foi/

Mental Health Champion

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FOI, Network Rail Limited

1 Attachment

Reference Number: FOI2018/00378

Dear Ms Breed

Please find attached a letter from Network Rail in response to your recent request for information.

Kind regards

Claire Duncan | Information Officer
Freedom of Information | Legal & Corporate Services

Network Rail | 1st Floor | Willen Building | The Quadrant: MK
Elder Gate | Milton Keynes | MK9 1EN
External 01908 782 405 | Internal 085 22405
Email: [Network Rail request email]
Web: http://www.networkrail.co.uk/foi/

Mental Health Champion

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Dear Network Rail Limited,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Network Rail Limited's handling of my FOI request 'Discrimination claims by type and year'.

I don't agree with the justification provided by you for withholding information requested. Network Rail is required to operate in a transparent manner and this includes make publication of accounts on an annual basis. Legal costs must fall under this requirement, otherwise how can the public be assured that it is getting value for money? Furthermore, disclosing what has been paid in a previous year does not determine what will be paid the next - if anything it would encourage competitive tender by firms wishing to break into the supplier base of a lucrative public body. The value of contracts awarded over a certain value are supposed to be disclosed under OJEU and there is nothing to prevent suppliers sharing information between themselves anyway. So your arguments about it not being in the public interest to disclose what has been spent in PREVIOUS years do not stack up.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/d...

Yours faithfully,

Kate

FOI, Network Rail Limited

Dear Ms Breed

Thank you for your email of 26 April 2018 about the response you received to request FOI2018/00378, which I will now deal with as an internal review.

I have taken your email as relating to the response to the part of your request which asked "how much you have spent on administration and/or defence of these claims, showing clearly what has been paid to the supply chain, including but not limited to solicitors and other advisors."

The purpose of the internal review procedure is to provide a fair, thorough and independent review of the handling of your request under the Freedom of Information Act 2000.

We will endeavour to respond to your request for an internal review by 25 May 2018. We will write to you if an extension is required.

Please quote reference FOI2018/00494 in any future correspondence about the internal review.

Yours sincerely

Colin Bendall
Information Officer – Compliance & Appeals
Freedom of Information Team
Network Rail
The Quadrant
Elder Gate
Milton Keynes
MK9 1EN

Telephone: 01908 782405
Email: [email address]
Web: www.networkrail.co.uk/foi

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FOI, Network Rail Limited

Dear Ms Breed

Further to my email below, I wanted to clarify that on the basis of your email, the internal review will only consider the response to the part of the request about spending on administration and/or defence of the claims.

However, please let me know if there are any other aspects of the response which you would like the internal review to consider.

Yours sincerely

Colin Bendall,
Information Officer – Compliance & Appeals,
Freedom of Information Team,
Network Rail,
The Quadrant,
Elder Gate,
Milton Keynes,
MK9 1EN

Telephone: 01908 782405
Email: [email address]
Web: www.networkrail.co.uk/foi

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FOI, Network Rail Limited

Dear Ms Breed

Our reference: FOI2018/00494

I am writing to advise you that I am still working on the internal review of the handling of your request and considering whether we handled your request in accordance with the Freedom of Information Act 2000.

I am therefore extending the time for response to 40 working days in line with the Information Commissioner’s guidance. I will respond by 25 June 2018 at the latest.

Yours sincerely

Colin Bendall
Information Officer – Compliance & Appeals
Freedom of Information Team
Network Rail
The Quadrant
Elder Gate
Milton Keynes
MK9 1EN

Telephone: 01908 782405
Email: [email address]
Web: www.networkrail.co.uk/foi

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Dear FOI,

According to whatdotheyknow.com:

"The response to your request is long overdue. You can say that, by law, under all circumstances, the authority should have responded by now"

Please could you tell me what is so difficult about my request.

Yours sincerely,

Kate

Lander Lou, Network Rail Limited

Dear Ms Breed

As explained in Mr Bendall's email below, we are continuing to deal with the internal review of the handling of your original request and have advised you that we have extended the time for response to the 25 June 2018 at the latest - Mr Bendall has now completed his enquiries and is preparing a decision and response in this case. He hopes to be in a position to issue this to you within the next 10 working days.

Yours sincerely

Lou Lander

Dr Lou Lander | Head of FOI
Network Rail | The Quadrant: MK | Elder Gate | Milton Keynes | MK9 1EN

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FOI, Network Rail Limited

1 Attachment

Dear Ms Breed

Our reference: FOI2018/00494

Please find attached our response to your request for an internal review.

Yours sincerely

Colin Bendall
Information Officer – Compliance & Appeals
Freedom of Information Team
Network Rail
The Quadrant
Elder Gate
Milton Keynes
MK9 1EN

Telephone: 01908 782405
Email: [email address]
Web: www.networkrail.co.uk/foi

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Dear FOI,

Thanks Colin, a comprehensive explanation I can see you've taken care over.
First things first - please can I have the excel file to which you refer?

Yours sincerely,

Kate

FOI, Network Rail Limited

Dear Kate

Reference number: FOI2018/00785
Information request

Thank you for email of 21 June 2018, which we are treating as a new request under the Freedom of Information Act 2000. I will endeavour to respond to you as soon as possible and in any event by 20 July 2018.

On occasion we may need to consult with third parties about requests, in line with the recommendations in the Code of Practice issued by the then Secretary of State for Constitutional Affairs.

If you have any queries about your request, please contact me.

Please remember to quote your reference number in all future communications about this request.

Yours sincerely

Colin Bendall
Information Officer – Compliance & Appeals
Freedom of Information Team
Network Rail
The Quadrant
Elder Gate
Milton Keynes
MK9 1EN

Telephone: 01908 782405
Email: [email address]
Web: www.networkrail.co.uk/foi

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FOI, Network Rail Limited

Dear Kate

Please note that the reference number for your request is FOI2018/00786. I apologise for the error in my previous email.

Yours sincerely

Colin Bendall
Information Officer – Compliance & Appeals
Freedom of Information Team
Network Rail
The Quadrant
Elder Gate
Milton Keynes
MK9 1EN

Telephone: 01908 782405
Email: [email address]
Web: www.networkrail.co.uk/foi

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FOI, Network Rail Limited

1 Attachment

Dear Kate

Reference number: FOI2018/00786

Please find attached our response to your Freedom of Information request.

Yours sincerely

Colin Bendall
Information Officer
Freedom of Information Team
Network Rail
The Quadrant
Elder Gate
Milton Keynes
MK9 1EN

Telephone: 01908 782405
Email: [Network Rail request email]
Web: http://www.networkrail.co.uk/foi/

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Dear FOI,

Treat as review or new request as you see fit.

Your response of 20 June gives an indicative time of 20minutes to retrieve cost information for each case. I have calculated that within the 18 hours that is allowed you could get costs for 54 cases. This c.31% of the 177 that you can confirmed exist.

Please do that exercise for the most recent 54 cases. If you run out of time, please do as many (working backwards) as you can do in the 18 hour allowance; if you get through more than 54 please keep going until you have used the full time allowance.

If you are concerned that providing me with the numbers on a case-by-case basis would breach an individual's expectation of privacy (e.g. Because I could match up settlement amounts to Judgments in the public domain) then I suggest that you simply mix the figures up so they are no longer in a particular order. Please group them by year at least, which would not compromise anyone's rights or negotiating positions.

Thanks.

Yours sincerely,

Kate

FOI, Network Rail Limited

Dear Kate

Reference number: FOI2018/00965
Information request

Your correspondence was received by Network Rail on 20 July 2018. I can confirm that your request is being processed as a new request under the terms of the Freedom of Information Act 2000. I will endeavour to respond to you as soon as possible and in any event by 20 August 2018.

On occasion we may need to consult with third parties about requests, in line with the recommendations in the Code of Practice issued by the then Secretary of State for Constitutional Affairs.

If you have any queries about this request, please contact me.

Please remember to quote your reference number in all future communications about this request.

Yours sincerely

Colin Bendall
Information Officer – Compliance & Appeals
Freedom of Information Team
Network Rail
The Quadrant
Elder Gate
Milton Keynes
MK9 1EN

Telephone: 01908 782405
Email: [email address]
Web: www.networkrail.co.uk/foi

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FOI, Network Rail Limited

Dear Ms Breed

Our reference: FOI2018/00965

My team and I have now made a number of enquiries in respect of your latest request, which itself follows on from the description of the searches for information in the previous Internal Review FOI2018/00494. However, before proceeding any further, I wanted to write to you to ensure that there is complete understanding and agreement about the specific information you are seeking; particularly, I want to make sure that it is completely clear what ‘cost’ information we will be seeking to retrieve for this new request. I have also given some thought to the manner in which you have chosen to ‘narrow’ your original request, and I will provide some further advice on this matter below.

Your new request does not indicate the specific information you are seeking; rather, it describes what you require us to do by reference to the searches which formed part of a previous request. This means that the information you are seeking can only be identified by referring back to other, separate responses – to avoid confusion and ensure accuracy, we need to bring these details together in one clearly worded request, and have your confirmation that this is indeed the information you are looking for.

Firstly, I want to be clear that the searches of the iProcurement system (described in FOI2018/00494) on which your new request is based concern only those costs sought in Part 4 of your original request:

[Part 4] - Please also say how much you have spent on administration and/or defence of these claims [discrimination cases], showing clearly what has been paid to the supply chain, including but not limited to solicitors and other advisors.’

This cost information is payments to external solicitors and contains those expenses incurred by an external solicitor for which they then charge Network Rail by way of disbursement.

These searches will not therefore locate any information on settlement costs (sought in part 3 of your original request) as these are held separately. These searches will also not contain any information for Network Rail employees who may have incurred expenses while working on these cases. These items will not form part of your request.

Therefore, before we proceed further, I would like you to confirm that you are seeking only details of those payments to external solicitors held in the iProcurement system. To avoid any ambiguity about the level of detail you are seeking, you should also clarify whether you are seeking a total cost to be provided for each case, or a breakdown showing the various payments that form each total.

Secondly, I do not consider that it is useful or reasonable to narrow your original request simply by asking for information to be retrieved up to the 18 hour limit. I would note that the previous estimate provided is simply that – an estimate calculated according to the requirements of section 12. While we conducted a sample exercise and believe that the estimate is reasonable and that it clearly demonstrated that the entirety of the previous request would exceed the cost threshold, the Information Commissioner’s guidance makes it clear that there is no requirement for this estimate to be precise. Indeed, it is likely that this estimate is conservative, and that retrieval and extraction of many cases will exceed this estimate – it is not a sound basis on which to proceed with a request seeking a specified number of cases to be searched. This risks simply exceeding the 18 hour limit again. While I note that you have indicated that you would be happy for information relating to a lesser number of cases to be provided once the 18 hour limit is reached, I should make clear that there is no requirement for a public authority to work up to the 18 hour limit when it is likely that compliance with a request would exceed this limit – this would place an unreasonable burden on the public authority.

Therefore, I would suggest that you specify that you require the information for a particular calendar year, 2017 being the most recent complete year. This will enable information for a reasonable number of cases to be retrieved and extracted, and allow considerations on whether the information should be disclosed or withheld to proceed.

To summarise, your request would then be:

For the calendar year 2017, either total payments or a breakdown of payments to external solicitors for each discrimination case.

Once you have confirmed that this is acceptable, or made amends/additions as necessary, we will be able to log the request and proceed to retrieve the information.

Yours sincerely

Jonathan Mantle | FOI Manager
Freedom of Information | Legal and Corporate Services

Network Rail | 1st Floor | Willen Building | The Quadrant: MK
Elder Gate | Milton Keynes | MK9 1EN
Telephone: 01908 782405
Email: [Network Rail request email]
Web: http://www.networkrail.co.uk/foi/

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Dear FOI,

Don't be absurd - you cannot reasonably rely upon the probability that an estimate provided by you is like to be inaccurate. You should have worked out all these variables when dealing with my original request - you're now just obfuscating.

Stop trying to avoid disclosure.

Please fulfil the request on my proposed terms (excluding settlement payments to individuals is fine).

You must know how much time NR employees spend on these tasks: You are obliged to account for which roles are involved and their duties and time spent (in which case you can tell me the annual headcount, per year, as well as their band and the average salaries / recharging rates). Alternatively, your system should hold invoices for discrete pieces of work outsourced to contractors and/or legal firms. To not be able to lay your hands on this summary information would be - for the Directors - borderline negligent.

There is no rule against starting at number one and working until you've reached 18 hours. Furthermore, it would not be reasonable for you to spend so long arguing with me about this request that you then claim there is "no time left" to actually supply the data. If you're planning that excuse next, please let me know so that I can go direct to the Information Commissioner's Office and stop wasting my time with you. You'll know from the previous time that I did this, I tend to raise valid points.

Yours sincerely,

Kate

FOI, Network Rail Limited

Dear Ms Breed

Thank you for responding to my email. I am afraid I am still not sure of how you would like us to move forwards with your request. I thought perhaps the most straightforward mechanism for moving forwards with the matter would be for me to set out the options as I see them and ask you to confirm which of them you would like to proceed with.

a) Regarding the administration/defence of discrimination claims since the Equalities Act 2010 came into effect, the value of payments made to external solicitors including those expenses incurred by an external solicitor for which they then charge Network Rail by way of disbursement.
b) Regarding the administration/defence of discrimination claims since the Equalities Act 2010 came into effect, the value of payments made to external solicitors including those expenses incurred by an external solicitor for which they then charge Network Rail by way of disbursement AND the internal costs incurred in dealing with all discrimination cases.
(In either case for us to work until we have provided you with all of the information requested, or until we have spent 18 hours on the request.)
c) An internal review of the previous response to this request.

I understand that this has been a more protracted process than you expected or desired but, in order to deal with your request properly, it is essential for us to be clear what information you are seeking.

I look forward to hearing back from you. If you have any questions or concerns, please contact me.

Jonathan Mantle | FOI Manager
Freedom of Information | Legal and Corporate Services

Network Rail | 1st Floor | Willen Building | The Quadrant: MK
Elder Gate | Milton Keynes | MK9 1EN
Telephone: 01908 782405
Email: [Network Rail request email]
Web: http://www.networkrail.co.uk/foi/

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Dear FOI,

Which option correlates with your methodology that estimated 20mins per case?

I must say that you are making a really straightforward request very confusing.

Yours sincerely,

Kate

FOI, Network Rail Limited

Dear Ms Breed

I confirm that option (a) in the email of 21 August 2018 would correlate most with the previous estimate that it would take 20 minutes to locate, retrieve and extract information for each case.

We will therefore process your correspondence as a new request as follows under the Freedom of Information Act 2000: "Regarding the administration/defence of discrimination claims since the Equalities Act 2010 came into effect, the value of payments made to external solicitors including those expenses incurred by an external solicitor for which they then charge Network Rail by way of disbursement."

We will endeavour to respond as soon as possible and by 20 September 2018.

On occasion we may need to consult with third parties about requests, in line with the recommendations in the Code of Practice issued by the then Secretary of State for Constitutional Affairs.

If you have any queries please do not hesitate to contact me.

Please quote reference FOI2018/01124 in any future communications about this request.

Yours sincerely

Colin Bendall
Information Officer – Compliance & Appeals
Freedom of Information Team
Network Rail
The Quadrant
Elder Gate
Milton Keynes
MK9 1EN

Telephone: 01908 782405
Email: [email address]
Web: www.networkrail.co.uk/foi

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FOI, Network Rail Limited

1 Attachment

Reference number: FOI2018/01124

Dear Ms Breed

Please find attached a letter in response to your request for information.

Yours sincerely

Colin Bendall
Information Officer – Compliance & Appeals
Freedom of Information Team
Network Rail
The Quadrant
Elder Gate
Milton Keynes
MK9 1EN

Telephone: 01908 782405
Email: [email address]
Web: www.networkrail.co.uk/foi

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Dear FOI,

Thank you for the most recent response dated 20 September. Unfortunately I am confused because the number of claims per year do not match the numbers that you gave me in April 2018:

2018 - 19 reported in September vs. 7 in April (which I at first assumed to be because, in April, we were only part-way through the year);
2016 (23 in September vs. 15 in April);
2015 (10 vs. 7);
2014 (12 vs. 10);
2013 (17 vs. 11).

As a result of this I'm not confident in any of the data you've provided! Please could you look into this and figure out what happened? Maybe I'm misreading the tables you sent (if so, apologies).

In any case I'd like confirmation of the correct figures and an explanation (unless it's my mistake) please.

Yours sincerely,

Kate

Lander Lou, Network Rail Limited

Dear Ms Breed

Thank you for your email. You are right that the two responses have different figures/results – it is indeed complicated, but I will do my best to explain.

The reason for the difference in totals is that the figures for the two separate requests were retrieved from different sets of data.

As you know from previous responses to you, there is no specific code or reference that identifies Employment Tribunals concerning discrimination cases – we must always review much broader sets of data to try to identify the particular type of case that you are interested in.

The figures for the number of discrimination cases provided to you in FOI2018/00378 in April 2018 were drawn from the summary information on Employment Tribunals held by our Legal team, which was filtered to identify all cases that contained reference to discrimination in their case description. At that time, it was believed that these totals represented the complete figures and these totals were provided to you.

Also at that time, this list was also used as the starting point for searches to identify the cost information that you also asked for; you’ll remember that in his Internal Review of FOI2018/00378 in June 2018 (FOI2018/00494), Mr Bendall described these searches in some detail, and explained how it would exceed 18 hours to retrieve the additional information you were seeking. Again, at that time it was believed that this was the only way the payment information could be retrieved.

When you made your recent request (FOI2018/01124) for the payments to external solicitors for discrimination cases, we knew from the previous Internal Review that we would only to be able to retrieve information for around a third of the cases within 18 hours if we used the method described in the Internal Review. For this reason, Mr Bendall made further enquiries to determine if there was any other way that it might be possible to search for and retrieve a greater amount of information. In this he was successful, albeit with some caveats.

He determined that all costs recorded against the Legal category cost code can be retrieved directly from the iProcurement system. This data contained all the Purchase Orders numbers and payments for all Legal costs, and we still faced the difficulty that there is no specific code or identifier to indicate discrimination cases. In some cases, the case description for an entry did specifically refer to discrimination; however, for the majority of cases, we undertook a further process of cross-referencing the details for each case contained within the iProcurement data with other records held by the Legal team. In this way, we were able to identify a far greater number of relevant entries than we had previously thought, and we utilised the full 18 hours permitted by the FOI Act in order to provide as much information to you as possible.

This is why Mr Bendall included a number of caveats in his recent response to you. To those, I would add the following:

1. By following the new method of searching, we did retrieve a greater amount of payment information than we previously thought possible. However, as the response stated, these figures do not represent all payments for discrimination cases, as to continue searching for further information for the remaining cases would have exceeded the 18 hour limit in the FOI Act.

2. As a result of the new searches, the new figures do include some additional cases which had not been previously identified as discrimination cases in FOI2018/00378. However, due to the 18 hour time limit, it is also true that we were not able to locate a cost for some cases that had previously been identified and included as discrimination cases in FOI2018/00378; these cases were therefore not included in the total number of cases indicated in FOI2018/01124.

3. The total payments figure recently provided for each year represents the total payment for the specific number of cases also given for that year – we provided payment information only for those cases where we were able to locate the cost associated with that case. We did not include a case in the total number of cases if we had not located a corresponding payment for it. This gives you a specific total cost for a specific number of cases.

I hope that this goes some way to explaining the difference in the two responses. You are most welcome to contact me directly if it would be useful for us to talk through it.

Yours sincerely

Lou Lander

Dr Lou Lander | Head of FOI
Network Rail | The Quadrant: MK | Elder Gate | Milton Keynes | MK9 1EN

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