Total Annual Figures for Compromise Agreements, etc.

Paul Cardin made this Freedom of Information request to Elmbridge Borough Council

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

The request was successful.

Dear Elmbridge Borough Council,

Please supply totals for the following:

As far as records go back, the annual figures for the total number of current employees / ex-employees of the Council who have signed compromise agreements directly related to the resolving of dispute(s) / grievance(s) / internal and external investigation(s) / whistleblowing incident(s).

In addition to this, annual figures for the number of current employees / ex-employees who have agreed, following the matter being raised and made conditional as part of a compromise agreement drawn up by the body acting as the Council's legal team, to forgo their right to approach the council in the future with Freedom of Information and/or DPA Subject Access requests under the relevant Acts.

Please note that I do not seek or require any personal information such as names and addresses – only the total figures for each subject area.

Yours faithfully,

Paul Cardin

Freedom of Information Generic Email, Elmbridge Borough Council

Thank you for your FOI request.
This has been logged on the Council's FOI Register and a response will be sent within the statutory time frame. This is normally 20 working days starting on the day after your enquiry is received. However, if your request is complex and involves lengthy investigation by officers and/or if further time is needed to consider the public interest test, we can take more time to deal with your enquiry. If we need to do this we will inform you.

Kind Regards

Freedom of Information Team
Elmbridge Borough Council
High Street
Civic Centre
Esher
Surrey KT10 9SD

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Dear Freedom of Information Generic Email,

By law, I believe the authority should have responded promptly and
by 1st February 2011.

Although I have received no response, to assist, I would like to
'sharpen' and reduce the scope of the original request as follows:

Please exclude all COT3 Agreements and all compromise agreements
drawn up in the following circumstances:

1. Purely redundancy situations
2. Purely PILON (pay in lieu of notice) situations
3. Equal pay claims
4. TUPE situations

Further to this, please reduce the time period to the years between
2005 and 2010 i.e. the last six years.

I am researching this particular area and aim to view trends and
movements both regionally and nationally. It would benefit myself
and the authority if the figures reached were as accurate as
possible.

When responding, please give figures in calendar year format e.g.
2005 - 1; 2006 - 3; 2007 - 2; etc.

Many thanks in advance,

Yours sincerely,

Paul Cardin

Caroline Hall, Elmbridge Borough Council

Dear Mr Cardin

The response from Elmbridge Borough Council to your FOI request regarding
the number of Compromise Agreements (as amended on 2 February 2011) is:

2005 - one
2006 - one
2007 - nil
2008 - two
2009 - nil
2010 - one

The Council operates a presumption of openness in its access to
information. It provides much information outside the provisions of the
Freedom of Information Act and it will continue to do on a “business as
usual” basis. Persons do not need to engage the statutory provisions to
access all reasonable information about the Council and its services.

If, for whatever reason, you are unhappy with our response, you have the
right to ask for an internal review. Internal review requests should be
submitted within two months of the date of receipt of the response to your
original letter and should be addressed to Head of Legal Services,
Elmbridge Borough Council, Civic Centre, High Street, Esher, Surrey KT10
9SD.

Should you then remain dissatisfied at the outcome of that process, you
are entitled to appeal against the decision by contacting:

The Information Commissioner's Office, Wycliffe House, Water Lane,
Wilmslow, Cheshire, SK9 5AF.

Telephone: 08456 30 60 60 or 01625 54 57 45

Website: [1]www.ico.gov.uk

Yours sincerely,

Caroline Hall
Head of Personnel
Elmbridge Borough Council
Civic Centre
High Street
Esher
Surrey KT10 9SD

Direct Line: 01372 474214
e-mail: [email address]
website: www.elmbridge.gov.uk

>>> Paul Cardin <[FOI #56633 email]> 02/02/2011
20:54 >>>
Dear Freedom of Information Generic Email,

By law, I believe the authority should have responded promptly and
by 1st February 2011.

Although I have received no response, to assist, I would like to
'sharpen' and reduce the scope of the original request as follows:

Please exclude all COT3 Agreements and all compromise agreements
drawn up in the following circumstances:

1. Purely redundancy situations
2. Purely PILON (pay in lieu of notice) situations
3. Equal pay claims
4. TUPE situations

Further to this, please reduce the time period to the years between
2005 and 2010 i.e. the last six years.

I am researching this particular area and aim to view trends and
movements both regionally and nationally. It would benefit myself
and the authority if the figures reached were as accurate as
possible.

When responding, please give figures in calendar year format e.g.
2005 - 1; 2006 - 3; 2007 - 2; etc.

Many thanks in advance,

Yours sincerely,

Paul Cardin

show quoted sections

Dear Caroline Hall,

Thanks very much for your response and for the time you have devoted to it.

If I can refer you back to my original request, please address the second question i.e. Has the council ever, or does it now use gagging clauses, as part of compromise agreements, related to preventing employees from exercising their statutory rights regarding FOI / DPA requests in the future?

Yours sincerely,

Paul Cardin

Caroline Hall, Elmbridge Borough Council

Dear Mr Cardin

The Council's compromise agreements do not contain a clause preventing the
employee from making FOI or DPA requests.

Yours sincerely,

Caroline Hall

>>> Paul Cardin <[FOI #56633 email]> 09/02/2011
18:08 >>>
Dear Caroline Hall,

Thanks very much for your response and for the time you have
devoted to it.

If I can refer you back to my original request, please address the
second question i.e. Has the council ever, or does it now use
gagging clauses, as part of compromise agreements, related to
preventing employees from exercising their statutory rights
regarding FOI / DPA requests in the future?

Yours sincerely,

Paul Cardin

show quoted sections

Dear Caroline Hall,

Many thanks for your reply,

Yours sincerely,

Paul Cardin

Paul Cardin left an annotation ()

Elmbridge Borough Council were one of the slower respondents of the 345 councils asked, taking 28 working days (over the statutory period) to respond positively and in full.

Please link here to read about the further aspects of this request:

www.easyvirtualassistance.co.uk/page4.html

...including councils who have attempted to prevent individuals from exercising their statutory FOI / DP querying rights.

There is a growing trend for the use of compromise agreements, not just in the area of disputes or whistleblowing, but also in general redundancy or equal pay claims. Some councils have yet to answer this query - and to date, 65 working days have elapsed

Paul Cardin left an annotation ()

Here’s a piece of legal opinion from Senior Counsel Hugh Tomlinson QC, which appears to make more likely the prospect of public sector employers opting for Freedom of Information and Data Protection “gagging clauses” within compromise agreements; and thereby aiming to remove persons’ statutory rights to make data and information requests.

It has been an effective reputation management tactic, and a way of concealing the historical malpractice engaged in by employers when targetting whistleblowers or getting rid of people who’ve lodged grievances. The ruse has been deployed in the past by two councils; Cheshire West & Chester, and Brent.

The ICO are powerless to prevent it as the HT opinion implies that contract law takes precedence over a person’s statutory rights – which it appears can be surrendered. The ICO could only act if the recipient of any “ban” were to breach it and make an FoI or DP request of the relevant data controller – which is unlikely to occur because there’s always a “club over the head” of the signatory to the compromise agreement i.e. the threat of any monetary pay off being clawed back through the courts.

http://tinyurl.com/bu9vynx