Total Annual Figures for Compromise Agreements, etc.

Paul Cardin made this Freedom of Information request to Hammersmith and Fulham 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 Hammersmith and Fulham 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 sign and 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

Jon Hill, Hammersmith and Fulham Borough Council

Hammersmith & Fulham - Information request - Information Management Team

Our reference: 314890

--------------------------------------------------------------------------

Dear Mr. Cardin

Freedom of Information Act 2000

Thank you for your request for information, received 4 January 2011. This
is currently being considered.

The Freedom of Information Act 2000 provides that a response must be
issued promptly and, in any event, within 20 working days of receipt of
the request. We, therefore, calculate the deadline for providing a
response to your request to be 1 February 2011.

Please note that there are a number of exemptions from the duty to
disclose information under the Act. If we decide to withhold information,
you will be provided with a detailed explanation of the exemption applied
and the public interest factors that we have considered. We will also
provide you with details of how to appeal against such a decision.

If we need further information from you in order to be able to process
your request, we will contact you and your request will be placed on hold
until the information is provided by you. The 20 working day period will
restart on the date that the additional information is received by us.

If you have any queries or concerns then please contact the Information
Management Team, details above.

Further information is also available from the Information Commissioner's
Office, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF, Telephone
08456 306060, [1]www.ico.gov.uk

Yours sincerely,

Jon Hill
Senior Information Management Officer
London Borough of Hammersmith and Fulham
Information Management Team/Finance and Corporate Services
2nd Floor, Hammersmith Town Hall Extension
King Street
London W6 9JU
Tel: 020 8753 2455/5865
Email: [2]h&[email address]

[3]www.lbhf.gov.uk

Director of Finance & Corporate Services: Jane West

References

Visible links
1. http://www.ico.gov.uk/
2. mailto:h&[email address]
3. http://www.lbhf.gov.uk/

Jon Hill, Hammersmith and Fulham Borough Council

Hammersmith & Fulham - Information request - Information Management Team

Our reference: 314890

--------------------------------------------------------------------------

Dear Mr. Cardin,

Freedom of Information Act 2000

Your request for information, received 4 January 2010, has now been
considered.

Your request
Q1. 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).

A1. From 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) are:

2000 - 4

2001 - 6

2002 - 9

2003 - 4

2004 - 2

2005 - 7

2006 - 6

2007 - 1

2008 - 7

2009 -19

2010 -33

Q2. 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 sign and forgo their right
to approach the council in the future with
Freedom of Information and/or DPA Subject Access requests under the
relevant Acts.

A2. Annual figures from as far back as 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 sign and forgo their right to approach the
council in the future with Freedom of Information is zero.

If you are dissatisfied with the handling of this response, please contact
the Information Manager, Business Technology, 2nd floor, Hammersmith Town
Hall Extension, King Street, London W6 9JU or email:
[1][email address].

You can also obtain further information from the Information
Commissioner's Office at:
Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
Tel: 08456 306060
Website: [2]www.ico.gov.uk
Enquiries: [3]www.ico.gov.uk/Global/online_enquiries.aspx

Yours sincerely,

Jon Hill

Senior Information Management Officer

London Borough of Hammersmith & Fulham

Information Management Team/Finance & Corporate Services

3rd Floor Smartspace

Hammersmith Town Hall

King Street

London W6 9JU

DL: 020 8753 5865

[4]www.lbhf.gov.uk

Director of Finance & Corporate Services: Jane West

References

Visible links
1. mailto:h&[email address]
2. http://www.ico.gov.uk/
3. http://www.ico.gov.uk/Global/online_enqu...
4. http://webapps3:8080/off/htmlarea/editor...

Dear Jon Hill,

Thank you very much for your quick and full response.

While the information may still be to hand, and to avoid making a new FOI request, would it be possible to break down the above figures further - by Council Department?

If possible, and to make this request more manageable, please could you restrict this to the last 6 calendar years i.e. 2005 to 2010?

Yours sincerely,

Paul Cardin

Jon Hill, Hammersmith and Fulham Borough Council

Hammersmith & Fulham - Information request - Information Management Team

Our reference: 319960

--------------------------------------------------------------------------

Dear Mr. Cardin

Freedom of Information Act 2000

Thank you for your request for information, received 18 January
2011. This is currently being considered.

The Freedom of Information Act 2000 provide[s] that a response must be
issued promptly and, in any event, within 20 working days of receipt of
the request. We, therefore, calculate the deadline for providing a
response to your request to be 15 February 2011.

Please note that there are a number of exemptions from the duty to
disclose information under the Act. If we decide to withhold information,
you will be provided with a detailed explanation of the exemption applied
and the public interest factors that we have considered. We will also
provide you with details of how to appeal against such a decision.

If we need further information from you in order to be able to process
your request, we will contact you and your request will be placed on hold
until the information is provided by you. The 20 working day period will
restart on the date that the additional information is received by us.

If you have any queries or concerns then please contact the Information
Management Team, details above.

Further information is also available from the Information Commissioner's
Office, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF, Telephone
08456 306060, [1]www.ico.gov.uk

Yours sincerely,

Ayse Ergen ( on behalf of Jon Hill )
Senior Information Management Officer
London Borough of Hammersmith and Fulham
Information Management Team/Finance and Corporate Services
SmartSpace 3rd Floor, Hammersmith Town Hall Extension
King Street
London W6 9JU
Tel: 020 8753 2455/5865
Email: [2]h&[email address]

[3]www.lbhf.gov.uk

Director of Finance & Corporate Services: Jane West

References

Visible links
1. http://www.ico.gov.uk/
2. mailto:h&[email address]
3. http://www.lbhf.gov.uk/

Dear Jon Hill,

Thanks for your assistance with this. I'm concerned by the number of compromise agreements you have issued compared to other councils of similar size.

Can you confirm that the figures quoted don't include compromise agreements drawn up in the following situations:

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

My aim is to pinpoint annual totals for those compromise agreements which have been reached in order to mutually end the working contract. These very often include the making of a payment to secure the employee's future co-operation, along with gagging and penalty clauses.

I have asked all English Councils this question, and the above revisions are placed in order to maintain accuracy and avoid any potential unfairness caused by including irrelevant statistics.

Yours faithfully,

Paul Cardin

Jon Hill, Hammersmith and Fulham Borough Council

Hammersmith & Fulham - Information request - Information Management Team

Our reference: 321726

--------------------------------------------------------------------------

Dear Mr. Cardin

Freedom of Information Act 2000

Thank you for your request for information, received 23 January
2011. This is currently being considered.

The Freedom of Information Act 2000 provide[s] that a response must be
issued promptly and, in any event, within 20 working days of receipt of
the request. We, therefore, calculate the deadline for providing a
response to your request to be 21 February 2011.

Please note that there are a number of exemptions from the duty to
disclose information under the Act. If we decide to withhold information,
you will be provided with a detailed explanation of the exemption applied
and the public interest factors that we have considered. We will also
provide you with details of how to appeal against such a decision.

If we need further information from you in order to be able to process
your request, we will contact you and your request will be placed on hold
until the information is provided by you. The 20 working day period will
restart on the date that the additional information is received by us.

If you have any queries or concerns then please contact the Information
Management Team, details above.

Further information is also available from the Information Commissioner's
Office, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF, Telephone
08456 306060, [1]www.ico.gov.uk

Yours sincerely,

Ayse Ergen ( on behalf of Jon Hill )
Senior Information Management Officer
London Borough of Hammersmith and Fulham
Information Management Team/Finance and Corporate Services
SmartSpace 3rd Floor, Hammersmith Town Hall
King Street
London W6 9JU
Tel: 020 8753 2455/5865
Email: [2]h&[email address]

[3]www.lbhf.gov.uk

Director of Finance & Corporate Services: Jane West

References

Visible links
1. http://www.ico.gov.uk/
2. mailto:h&[email address]
3. http://www.lbhf.gov.uk/

Jon Hill, Hammersmith and Fulham Borough Council

Hammersmith & Fulham - Information request - Information Management Team

Our reference: 321726

--------------------------------------------------------------------------

Dear Mr. Cardin,

Freedom of Information Act 2000

Please find below your Freedom of Information request received here 23^rd
February, and our response to it:

Thanks for your assistance with this. I'm concerned by the number of
compromise agreements you have issued compared to other councils of
similar size.

Can you confirm that the figures quoted don't include compromise
agreements drawn up in the following situations:

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

My aim is to pinpoint annual totals for those compromise agreements which
have been reached in order to mutually end the working contract. These
very often include the making of a payment to secure the employee's future
co-operation, along with gagging and penalty clauses.

I have asked all English Councils this question, and the above revisions
are placed in order to maintain accuracy and avoid any potential
unfairness caused by including irrelevant statistics.

2005 = 5

2006 = *

2007 = *

2008 = 6

2009 = 12

2010 = 23

* Indicates that the total is small enough that we consider the data to
constitute personal information and hence exempt from the Freedom of
Information Act. Although the data is anonymised, the individual(s)
concerned could be identified either by themselves or by a third party.
Therefore the data has been redacted. I note that previous responses to
your Freedom of Information requests have not met with similar redactions.
I can only add that the threshold for such redactions is at the discretion
of the responding officer based on the regulations and on the context of
the request.

Some of the information you request is exempt under section 40 of the
Freedom of Information, which exempts information that can be considered
personal data as defined by the Data Protection Act 1998. This email
therefore acts as a refusal notice. The ICO's guidance on applying the
exemption at section 40 of the Freedom of Information Act on personal
data, states that public authorities first need to consider whether the
data is personal.

Section 1(1) of the Data Protection Act defines personal data as:

Data which relate to an individual who can be identified

(a) From those data, or

(b) From those data and other information which is in the possession of,
or is likely to come into the possession of, the data controller

The disclosure of one piece of data provided in response to some of your
questions could be sufficient for an individual to identify themselves, or
be identified by someone they know therefore making it personal data. This
situation is amplified when taking all of your questions in combination as
much of the data you have requested in combination certainly constitutes
personal data as the risk of identification of individual(s) concerned
increases. It is for these reasons that some anonymised data can still
constitute personal data particularly where the figures are so low that
disclosure in the public domain could enable the individual(s) concerned
to identify themselves or be identified by a third party.

I have therefore determined that some of the data requested constitutes
personal data. As such, I now need to consider whether disclosure of the
data requested would breach the first Data Protection principle which
states that:

1. Personal data shall be processed fairly and lawfully and, in
particular, shall not be processed unless -

(a) at least one of the conditions in Schedule 2 is met, and

(b) in case of sensitive personal data, at least one of the conditions
in Schedule 3 is also met.

With regards to Schedule 2 there are only two relevant conditions.
Condition 1 relates to consent and we (the Council) would not have sought
consent for processing or disclosure in response to a Freedom of
Information request; therefore Condition 1 is not satisfied. In such
circumstances I need to consider Condition 6 which requires that:

6.(1) The processing is necessary for the purposes of legitimate interests
pursued by the data controller or by the third party or parties to whom
the data are disclosed, except where processing is unwarranted in any
particular case by reason of prejudice to the rights and freedoms or
legitimate interests of the data subject.

The ICO's advice, following the Tribunal decision in Corporate Officer of
the House of Commons v Information Commissioner, Leapman, Brooke and
Thomas (EA/2007/0060 etc; 26 February 2008) which was upheld at the High
Court, is that we need to consider Condition 6 as a three-part test:

1. there must be legitimate public interest in disclosure;

2. the disclosure must be necessary to meet that public interest; and

3. the disclosure must not cause unwarranted harm to the interests of
the individual.

I will now apply this three-part test to your original request.

1. Is there a legitimate public interest in disclosure?

The Freedom of Information Act 2000 was introduced in order to promote
transparency in public life. In these difficult economic times when there
are proposed cuts to public services and an emphasis on increased
transparency, there has been an increased public interest in how public
money is spent.

2. Is disclosure necessary to meet the public interest?

Considering the nature of the data there would not appear to be another
way of meeting the public interest other than disclosure; however we still
need to balance this against the interests of any individuals in the third
part of the test.

3. Will disclosure cause unwarranted harm to the interests of the
individual(s) concerned?

The data in question would relate to an individual's private home life,
which could cause them distress if released into the public domain, as
they would not have expected their data to be used in this way. They could
also experience harassment or personal threats if they were identified by
other members of the public. This could then result in a complaint to H&F
Council and to the ICO under the Data Protection Act 1998 which would then
need to be investigated as a potential breach.

In addition some of the health and special needs data you have requested
is defined by the Data Protection Act as sensitive personal data. Bearing
in mind the requirements of Principle 1 above, I would need to find an
additional condition for processing in Schedule 3. The ICO guidance states
that it will be difficult to satisfy one of the conditions within this
schedule and consent will not be an option.

In reviewing the case I therefore have to weigh the public interest in
disclosing this data under the Freedom of Information Act 2000 with the
council's obligations and the potential of enforcement action under the
Data Protection Act 1998.

In this case, I can confirm that the data is held, however I find that the
public interest in withholding outweighs the public interest in
disclosure. In some cases I do not deem the information you have requested
to be personal data and have provided responses.

If you are dissatisfied with the handling of this response, please contact
the Information Manager, Business Technology, 2nd floor, Hammersmith Town
Hall Extension, King Street, London W6 9JU or email:

[1][email address].

You can also obtain further information from the Information
Commissioner's Office at:
Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
Tel: 08456 306060
Website: [2]www.ico.gov.uk
Enquiries: [3]www.ico.gov.uk/Global/online_enquiries.aspx

Yours sincerely,

Joe Norman
Information Management Team

References

Visible links
1. mailto:h&[email address]
2. http://www.ico.gov.uk/
3. http://www.ico.gov.uk/Global/online_enqu...

Dear Jon Hill,

Thanks very much for your very detailed response. I will insert the figure 1 in each of the years with an asterisk and treat this as the 'correct' figure.

It won't matter greatly if it is out by 1 or so, as it will be accurate enough for the purposes of my research.

Whilst I disagree with your reasoning regarding personal data and the risk of identifying individuals, I appreciate your response is as full as it can be, and I would not want to waste public money by requesting an internal review,

Thanks again,

Yours sincerely,

Paul Cardin

Hill Jonathan, Hammersmith and Fulham Borough Council

I am currently out of the office until Tuesday 1 March. If you have an urgent query about the following, please contact the appropriate officer below:
* members of the public should submit all requests for information under FOIA and EIR to the h&f InTouch Team - h&[email address]
* internal Freedom of Information and Information Rights Compliance matters - [email address] or Joe Norman on 020 8753 2455;
* Information Security Management - Adrian Dewey on 020 8753 1104.
All other urgent queries are to be referred to Ciara Shimidzu on 020 8753 3895.

Regards,

Jon Hill
Senior Information Management Officer

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Jon Hill, Hammersmith and Fulham Borough Council

1 Attachment

Hammersmith & Fulham - Information request - Information Management Team

Our reference: 319960

--------------------------------------------------------------------------

Dear Mr. Cardin,

Freedom of Information Act 2000

Your request for information, received 18 January 2011, has now been
considered. I apologise for the delay in providing this response

Your request

While the information may still be to hand, and to avoid making a
new FOI request, would it be possible to break down the above
figures further - by Council Department?

If possible, and to make this request more manageable, please could
you restrict this to the last 6 calendar years i.e. 2005 to 2010?

Please see attached document.

If you are dissatisfied with the handling of this response, please contact
the Information Manager, Information Management Team, 3rd floor
Smartspace, Hammersmith Town Hall, King Street, London W6 9JU or email:
[1][email address].

You can also obtain further information from the Information
Commissioner's Office at:
Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
Tel: 08456 306060
Website: [2]www.ico.gov.uk
Enquiries: [3]www.ico.gov.uk/Global/online_enquiries.aspx

Yours sincerely,

Jon Hill

Senior Information Management Officer

London Borough of Hammersmith & Fulham

Information Management Team/Finance & Corporate Services

3rd Floor Smartspace

Hammersmith Town Hall

King Street

London W6 9JU

DL: 020 8753 5865

[4]www.lbhf.gov.uk

Director of Finance & Corporate Services: Jane West

References

Visible links
1. mailto:h&[email address]
2. http://www.ico.gov.uk/
3. http://www.ico.gov.uk/Global/online_enqu...
4. http://webapps3:8080/off/htmlarea/editor...

Paul Cardin left an annotation ()

Hammersmith and Fulham Borough Council were one of the quicker respondents of the 345 councils asked, taking 11 days 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 - although 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