Total Annual Figures for Compromise Agreements, etc.

Paul Cardin made this Freedom of Information request to Barnet 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 partially successful.

Dear Barnet Borough Council,

Please supply totals for the following:

Since the inception of Barnet Borough Council, or as far as records go back, the annual figures for the total number of current employees or ex-employees of Barnet Borough 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 Barnet Borough 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

Topping, Maureen, Barnet Borough Council

Dear Mr Cardin

Thank you for your request for information, which was received on 1^st
January 2011 Your request is being considered and you will receive the
information requested within the statutory timescale of 20 working days as
defined by the Freedom of Information Act 2000, subject to the information
not being exempt or containing a reference to a third party.

As your request was received by e-mail it will most likely be responded to
via e-mail unless you indicate this is unsatisfactory. If appropriate,
the information may be provided in paper copy, normal font size. If you
require alternative formats, such as in a different language, audio or
large print, then please let us know.

For your information, the Act defines a number of exemptions which may
prevent release of the information you have requested. There will be an
assessment and if any of the exemption categories apply then the
information will not be released. You will be informed if this is the
case, including your rights of appeal.

There may be a fee payable for this information. This will be considered
and you will be informed if a fee is payable.

Freedom of Information is a statutory responsibility that is discharged
corporately by Barnet Council. It is likely that many council officers
may have contributed to most responses. The officer named below will have
been involved in your response, most likely in a co-ordinating role, and
the name is provided for your information and reference. However, please
direct any further related correspondence through the [1][email address]
address from where it will be quickly directed to the most appropriate
Officer.

Kind regards,

Maureen Topping
Service Development Specialist
Human Resources, Corporate Services
Phone: 020 8359 7804
Building 4, North London Business Park, Oakleigh Road South, London,
N11 1NP.
[2]www.barnet.gov.uk
P please consider the environment - do you really need to print this
email?

show quoted sections

References

Visible links
1. BLOCKED::BLOCKED::blocked::mailto:[email address]
BLOCKED::blocked::mailto:[email address]
blocked::mailto:[email address]
mailto:[email address]
file:///tmp/BLOCKED::BLOCKED::blocked::mailto:[email address]
2. http://www.barnet.gov.uk/
file:///tmp/blocked::http:/www.barnet.gov.uk

Dear Maureen,

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

Topping, Maureen, Barnet Borough Council

Dear Mr Cardin,

Thank you for your email received today.  I apologise for not responding
to you by yesterday's due date.  We have a response to your original
request which is as follows:

I am writing regarding your request to the London Borough of Barnet (the
Council) under the Freedom of Information Act 2000 (the FOIA) for access
to the following:

Since the inception of Barnet Borough Council, or as far as records

go back, the annual figures for the total number of current

employees or ex-employees of Barnet Borough 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 Barnet Borough 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.

My response to your request is below.

Refusal Notice

The council does not collate the statistical information you have
requested and from our preliminary assessment we estimate that
identifying, locating, retrieving and extracting the information required
to respond to your request would exceed the appropriate costs limit under
section 12 of the FOIA. This is currently £450.

Identifying, locating, retrieving and extracting the information required
to respond to your request would require a search of approximately 13,000
files held by our Human Resources Service. Each file would need to be
searched for approximately 5 minutes in order to identify, locate,
retrieve and extract the information requested, resulting in a total of
approximately 1000 hours. At a cost of £25 per hour, the estimated cost
would be £25,000.00. However, this information would not be complete
because personal files are retained for a limited period after a member of
staff leaves the authority.

The council has considered in accordance with its duty under section 16 of
the FOIA how we might assist you with refining the request to bring it
within the costs limit, but we have concluded based on how the records are
held that this would not be possible.

However I acknowledge your revised request received today 2 February which
is being considered under the Freedom of Information Act 2000 and I will
respond to this request as soon as possible.

Your Rights

If you are unhappy with the way your request for information has been
handled, you can request a review by writing to the FOI Officer at: The
London Borough of Barnet, North London Business Park, Oakleigh Road South,
London, N11 1NP (email [email address]).

If you remain dissatisfied with the handling of your request or complaint,
you have a right to appeal to the Information Commissioner at: The
Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF (telephone: 08456 30 60 60 or 01625 54 57 45; website:
www.ico.gov.uk).

There is no charge for making an appeal.

Yours sincerely,

Maureen Topping
Service Development Specialist
Human Resources, Corporate Services
Phone: 020 8359 7804
Building 4, North London Business Park, Oakleigh Road South, London, N11
1NP.
[1]www.barnet.gov.uk
P please consider the environment - do you really need to print this
email?

show quoted sections

References

Visible links
1. http://www.barnet.gov.uk/
file:///tmp/blocked::http:/www.barnet.gov.uk

Dear Topping, Maureen,

Thanks very much for your response. I appreciate your position
however this query is identical to one which has been sent to ALL
English councils. So far, I have had 153 (one hundred and fifty
three) full and detailed positive responses. These councils did not
have any difficulty in responding to what they appeared to regard
as a reasonable request.

I am currently involved in research in this area and in order to
assist and to make your task more manageable, can I make the
following reductions in scope?

Please can you exclude compromise agreements drawn up in the
following circumstances:

1. Purely redundancy situations
2. Purely PILON (payment in lieu of notice) situations
3. Equal pay claims
4. TUPE situations
5. COT3 agreements (where tribunal proceedings may or may not have
been initiated)

Also, to assist you further, I will narrow the time period down to
between the years 2005 to 2010 i.e. the last six years.

Given that a total of 153 councils have not found any difficulty, I
imagine that they may be taking a different approach to searching
for the information.

Can I suggest that you query your Accounts Department? I ask this
because when employees leave in the circumstances I am describing,
they are offered a financial incentive to end their working
contracts. Your Accounts department is required to keep a detailed
electronic record of all such payments. As they should be keeping
an adequate data storage / retrieval system, it will not be too
arduous a task for them to provide Annual total figures for
compromise agreements drawn up in these circumstances.

You could also put in a call to your Legal Department who may keep
a similar searchable database.

I hope the above information assists you. I don't believe that the
possession of an inadequate data storage / retrieval system
warrants the use of an exclusion under the FOI Act and look forward
to your response,

Yours sincerely,

Paul Cardin

Dear Barnet Borough Council,

Just a quick reminder about the email I sent to you on 2nd February, now some weeks ago.

Please can you address this, and also the second part of my original request, sent way back at the start of January i.e. Does the council, as part of a compromise agreement attempt to get employees 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?

Many thanks in advance,

Yours faithfully,

Paul Cardin

Topping, Maureen, Barnet Borough Council

Dear Mr Cardin

Further to your revised email below please find the council's response to
your Freedom of Information request.

Refusal Notice
I appreciate your offer to narrow the time period down to between the
years 2005 to 2010 and your suggestion to contact both our finance and
legal services which I have done, however, the council does not collate
the statistical information you have requested. Compromise Agreements are
not always referred to our legal service and within our finance service;
payments made to employees exiting the organisation do not specify the
circumstances of their leaving. Therefore from our preliminary assessment
we estimate that identifying, locating, retrieving and extracting the
information required to respond to your request would still exceed the
appropriate costs limit under section 12 of the FOIA. This is currently
£450.

Identifying, locating, retrieving and extracting the information required
to respond to your revised request even if we were to limit that to
employees with payments made on leaving the authority would still require
a search of approximately 617 files held by our Human Resources Service.
Each file would need to be searched for approximately 5 minutes in order
to identify and extract the information requested, resulting in a total of
approximately 51 hours. At a cost of £25 per hour, the estimated cost
would be £1285.

The council has considered in accordance with its duty under section 16 of
the FOIA how we might assist you with refining the request to bring it
within the costs limit, but we have concluded based on the way in which
our records are held that this would not be possible. However, in
relation to your secondary question in your original request it is not our
normal practice to include in a compromise agreement a clause for
employees 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. Without examining each individual compromise agreement I
cannot categorically confirm that the council has never included such a
clause but based on extensive discussion I believe it to be unlikely.

Your Rights

If you are unhappy with the way your request for information has been
handled, you can request a review by writing to the FOI Officer at: The
London Borough of Barnet, North London Business Park, Oakleigh Road South,
London, N11 1NP (email : [1][Barnet Borough Council request email]).

If you remain dissatisfied with the handling of your request or complaint,
you have a right to appeal to the Information Commissioner at: The
Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire, SK9 5AF (telephone: 08456 30 60 60 or 01625 54 57 45; website:
[2]www.ico.gov.uk).

There is no charge for making an appeal.

Kind regards,

Maureen Topping
Service Development Specialist
Human Resources, Corporate Services
Phone: 020 8359 7804
Building 4, North London Business Park, Oakleigh Road South, London, N11
1NP.
[3]www.barnet.gov.uk
P please consider the environment - do you really need to print this
email?

FOI - Total Annual Figures for Compromise Agreements

Dear Topping, Maureen,

Thanks very much for your response. I appreciate your position
however this query is identical to one which has been sent to ALL
English councils. So far, I have had 153 (one hundred and fifty
three) full and detailed positive responses. These councils did not
have any difficulty in responding to what they appeared to regard
as a reasonable request.

I am currently involved in research in this area and in order to
assist and to make your task more manageable, can I make the
following reductions in scope?

Please can you exclude compromise agreements drawn up in the
following circumstances:

1. Purely redundancy situations
2. Purely PILON (payment in lieu of notice) situations
3. Equal pay claims
4. TUPE situations
5. COT3 agreements (where tribunal proceedings may or may not have
been initiated)

Also, to assist you further, I will narrow the time period down to
between the years 2005 to 2010 i.e. the last six years.

Given that a total of 153 councils have not found any difficulty, I
imagine that they may be taking a different approach to searching
for the information.

Can I suggest that you query your Accounts Department? I ask this
because when employees leave in the circumstances I am describing,
they are offered a financial incentive to end their working
contracts. Your Accounts department is required to keep a detailed
electronic record of all such payments. As they should be keeping
an adequate data storage / retrieval system, it will not be too
arduous a task for them to provide Annual total figures for
compromise agreements drawn up in these circumstances.

You could also put in a call to your Legal Department who may keep
a similar searchable database.

I hope the above information assists you. I don't believe that the
possession of an inadequate data storage / retrieval system
warrants the use of an exclusion under the FOI Act and look forward
to your response,

Yours sincerely,

Paul Cardin

The information in this e-mail is confidential and may also be the subject
of legal privilege. It is intended solely for the addressee. If you are
not the intended recipient please reply to the sender.

Information contained in this e-mail may be subject to public disclosure
under the Freedom of Information Act 2000 or the Environmental Information
Regulations 2004. Unless the information is legally exempt from
disclosure, the confidentiality of this e-mail and your reply cannot be
guaranteed.

You are hereby placed on notice that any copying, publication or any other
form of dissemination of this e-mail or its contents is prohibited. Whilst
every endeavour is taken to ensure that e-mails are free from viruses, no
liability can be accepted, the recipient must use their own virus checking
software.
_______________________________________________

References

Visible links
1. mailto:[Barnet Borough Council request email]
mailto:[Barnet Borough Council request email]
2. blocked::BLOCKED::http://www.ico.gov.uk
http://www.ico.gov.uk
file:///tmp/blocked::BLOCKED::http:/www.ico.gov.uk
3. http://www.barnet.gov.uk/
file:///tmp/blocked::http:/www.barnet.gov.uk

Dear Topping, Maureen,

Thanks for your response.

While I consider whether to opt for an internal review, please could you attempt to confirm or deny absolutely whether Barnet Council have, within a compromise agreement, used "gagging clauses" to prevent an employee or ex-employee from exercising their statutory querying rights regarding FOI / DPA in the future.

This is very important. One council (from 232 full and positive responses) and another from a separate query, have admitted to this since 1st January 2011. I would hope to rule out as many councils as possible in the event that a ruling or statement is made regarding this unsatisfactory situation in the near future,

Yours sincerely,

Paul Cardin

Topping, Maureen, Barnet Borough Council

Dear Mr Cardin

Thank you for your email.

I would reiterate that without examining each compromise agreement I cannot categorically confirm that the council has never included a clause to prevent an employee or ex-employee from exercising their statutory querying rights regarding FOI / DPA in the future.

I have however discussed with all HR colleagues that are currently employed by Barnet and who would have knowledge of Compromise Agreements and none of them are aware of any such clause ever being included.

Whilst I cannot be absolutely certain I would add that as I am personally responsible for the co-ordination of all FOI and Subject Access Requests responses and I have never been made aware of any restrictions on providing appropriate information to any employees or former employees it is my belief that no restrictions have ever been included in Compromise Agreements at Barnet.

I am sorry I cannot be more helpful but I hope this information will be sufficient for your research.

Kind Regards

Maureen Topping
Service Development Specialist
Human Resources, Corporate Services
Phone: 020 8359 7804
Building 4, North London Business Park, Oakleigh Road South, London, N11 1NP.
www.barnet.gov.uk
please consider the environment - do you really need to print this email?

show quoted sections

Dear Topping, Maureen,

Thanks for your response. The problem with this area is that once a compromise agreement is signed and agreed upon by both parties, usually neither the employer or employee can discuss its contents, except in exceptional circumstances.

And therein lies the unfairness of the whole situation. The act of including a legally questionable clause becomes effectively hidden, which flies in the face of openness and transparency, and becomes concealed from the public.

This is why I asked for a categorical assurance and most councils have been able to provide me with this. I will not pursue this issue however and will take your advice as an honest assurance that such clauses have not been employed.

Many thanks for your time,

Yours sincerely,

Paul Cardin

Dear Barnet Borough Council,

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

I am writing to request an internal review of Barnet Borough Council's handling of my FOI request 'Total Annual Figures for Compromise Agreements, etc.'.

Thanks for your response and for the time you have devoted to my query.

Your decision not to release the information is unique for a number of reasons:

A large number of councils who returned a similar 'costs' exemption response were, like yourself, offered a subsequent reduction in the scope of the initial request. These councils went on to reconsider before proceeding with a full and detailed answer. Whereas you have insisted on a refusal.

Please take into account all the information I have submitted to date. To give you a picture of the wider context here, this request has been made to ALL English Councils above a certain size. To date, since 1st January 2011, 238 (two hundred and thirty eight) councils have responded positively and in full. We have had eleven years of FOI and I would have hoped that your council would have been working towards an effective data storage / retrieval system that works with the public interest in mind. You have not advised me of any plans to do so and appear to be happy to continue maintaining an unresponsive system.

It is not right that the public suffers and obstacles are placed in the way of their information because you are persevering with the upkeep of a cumbersome data storage system. Particularly in light of the positive response from hundreds of your LGA colleagues.

I don't think that your possession and maintenance of an inadequate method of storing and retrieving information is an justification for refusal.

I also believe that the public interest in releasing this information outweighs the public interest in not releasing it - regardless of the costs involved. Costs which seem to be occasioned by the detrimental (to the public) effect of your own inadequate systems.

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

Yours faithfully,

Paul Cardin

Freedom of Information Act, Barnet Borough Council

Dear Mr Cardin,

I am writing to acknowledge receipt of your request for internal review
dated 25 February 2011 regarding your request to the Council under the
Freedom of Information Act 2000 (the 'FOIA') for access to the
following:

1. From 2005 - 2010 please provide the annual figures for the total
number of current
employees or ex-employees of Barnet Borough Council who have signed
compromise agreements directly related to the resolving of
dispute(s) / grievance(s) / internal and external investigation(s)
/ whistleblowing incident(s).

Please can you exclude compromise agreements drawn up in the
following circumstances:

a. Purely redundancy situations
b. Purely PILON (payment in lieu of notice) situations
c. Equal pay claims
d. TUPE situations
e. COT3 agreements (where tribunal proceedings may or may not have
been initiated)

2. 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 Barnet Borough 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.

I understand that you are requesting an internal review as you are not
satisfied with the response provided by the Council to the first part of
your request.

The Council will now conduct an independent and impartial internal
review in accordance with the FOIA that will reconsider the merits of
the case and identify any errors in the handling of your request.

In line with guidance issued by the Information Commissioner, the
Council aims to complete internal reviews promptly and in any event
within 20 working days from receipt of the request. In exceptional cases
further time may be required, but the Council will not exceed 40 working
days.

If, following our review, you are still unhappy with the way we have
applied the Act, you can appeal directly to the Information Commissioner
at: The Information Commissioner's Office, Wycliffe House, Water Lane,
Wilmslow, Cheshire, SK9 5AF (telephone: 08456 30 60 60 or 01625 54 57
45; website: www.ico.gov.uk). There is no charge for making an appeal.

Yours sincerely,

Catherine Wilson Pointer
Governance Officer

Corporate Governance Directorate
London Borough of Barnet, North London Business Park, Oakleigh Road
South, London N11 1NP
Tel: 020 8359 7757
Barnet Online: www.barnet.gov.uk
P please consider the environment - do you really need to print this
email?

show quoted sections

Topping, Maureen, Barnet Borough Council

Dear Mr Cardin,
Thank you for your email.
I do appreciate your position and I'm sorry I was not able to give you the categorical assurance you were seeking.
I wish you well with your research.

Kind Regards

Maureen Topping
Service Development Specialist
Human Resources, Corporate Services
Phone: 020 8359 7804
Building 4, North London Business Park, Oakleigh Road South, London, N11 1NP.
www.barnet.gov.uk
please consider the environment - do you really need to print this email?

show quoted sections

Wilson Pointer, Catherine, Barnet Borough Council

Dear Mr Cardin,

I am writing in relation to your email to the London Borough of Barnet (the Council) dated 25 February 2011 requesting an internal review of the Council's response to your request under the Freedom of Information Act 2000 (the FOIA).

You have requested an internal review of the Council's refusal notice in relation to your request for:

1. From 2005 - 2010 please provide the annual figures for the total number of current employees or ex-employees of Barnet Borough Council who have signed compromise agreements directly related to the resolving of
dispute(s) / grievance(s) / internal and external investigation(s) / whistleblowing incident(s).

Please can you exclude compromise agreements drawn up in the following circumstances:

a. Purely redundancy situations
b. Purely PILON (payment in lieu of notice) situations c. Equal pay claims d. TUPE situations e. COT3 agreements (where tribunal proceedings may or may not have been initiated)

I have undertaken the requested internal review. The outcome of my review is set out below.

Response
The Council's response to your request dated 23 February 2011 contained a refusal notice in relation to your request for information set out above. The Council refused to provide this information under section 12 of the FOIA as it considered that identifying, locating, retrieving and extracting the information requested would exceed the appropriate costs limit.

The Council's response set out the difficulties that would be experienced in identifying, locating, retrieving and extracting the information and confirmed that it had considered whether further refinement of your request would allow the information to be provided within the appropriate costs limit, concluding that that would not be possible.

Having reconsidered this matter, I have decided to uphold our initial decision.

Section 12(1) of the FOIA states that a public authority does not need to comply with a request for information "if the authority estimates that the cost of complying with the request would exceed the appropriate limit". For local authorities the appropriate limit is £450. This limit is prescribed by The Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 (the Fees Regulations), made under the FOIA.

The Fees Regulations limit the costs which may be taken into account to those which the public authority reasonably expects to incur in:
(i) determining whether it holds the information
(ii) locating the information, or a document which may contain the information
(iii) retrieving the information, or a document which may contain the information, and
(iv) extracting the information from a document containing it.
The Fees Regulations prescribe that costs are to be estimated at a rate of £25 per person per hour.

I am satisfied that our estimate was in accordance with the above provisions and was reasonable, and therefore that we were entitled to refuse your request under section 12 of the FOIA.

I can confirm that the Council is always looking for ways to improve the data storage and retrieval systems relevant to HR records and considers queries that it has not been possible to respond to when modifying systems to asses whether there are better ways of holding those records.

Your right of appeal to the Information Commissioner
We consider we have complied with our obligations under the FOIA. However, if you remain dissatisfied with the handling of your request or complaint, you have a right to appeal to the Information Commissioner at: The Information Commissioner's Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF (telephone: 08456 30 60 60 or 01625 54 57 45; email [email address]; website www.ico.gov.uk). There is no charge for making an appeal.

Yours Sincerely,

Catherine Wilson Pointer
Governance Officer

Corporate Governance Directorate
London Borough of Barnet, North London Business Park, Oakleigh Road South, London N11 1NP
Tel: 020 8359 7757
Barnet Online: www.barnet.gov.uk
P please consider the environment - do you really need to print this email?

show quoted sections

Paul Cardin left an annotation ()

Barnet Borough Council went to internal review, before deciding against supplying most of the information.

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 less controversial areas of redundancy, severance 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