Total Annual Figures for Compromise Agreements, etc.

Paul Cardin made this Freedom of Information request to Middlesbrough 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 Middlesbrough Council,

Please supply Annual totals for the following:

As far as records go back, the annual figures for the total number of current employees / ex-employees (including teaching staff) 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 (including teaching staff) 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 provide the figures in the following format e.g. 2006 - 2; 2007 - 4; 2008 - 0; 2010 - 6; etc.

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

Middlesbrough Council

Dear Mr Cardin

REF NO: 2098.1.

Thank you for your recent enquiry, received on 4 January 2011. We can
confirm that your enquiry is receiving attention and a response will be
provided within 20 working days following receipt of your enquiry as
allowed under the Freedom of Information Act legislation.

In some circumstances a fee may be payable and if that is the case, I will
let you know the likely charges before proceeding.

Please do not hesitate to contact me direct on (01642) 729696/729698 or
email [Middlesbrough Council request email] should you require any further advice or
assistance with this or any other matter.

Yours sincerely

Steph Robson
Freedom Of Information Officer

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Middlesbrough Council

Dear Mr Cardin

REF NO: 2098.1
I am writing to confirm that Middlesbrough Council has now completed its
search for the information you requested on 4 January 2011 regarding
comprise aggreements and a copy of the information requested can be found
below.

Your request:
As far as records go back, the annual figures for the total number of
current employees / ex-employees (including teaching staff) 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 (including teaching staff) 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.

Our response:
Section 12 of the FOI Act allows public authorities to refuse to answer
requests for information if the cost of complying would exceed the
"appropriate limit" prescribed in the Regulations. The appropriate limit
as set out in the Act is *450 (an hourly rate of *25 per person per hour
for a maximum of 18 hours in total). To fully comply with your request we
have concluded that the appropriate fees limit of *450 would be exceeded
as per section 12 of the Freedom of Information Act. However, in order to
be helpful we have supplied the following infomation within the allowed
time.
The numbers of staff who signed compromise agreements are as follows -
2008 - 10
2009 - 11
2010 - 11

With regard to employees forgoing future DPA/ FOI requests, there is not a
clause in the compromise agreement whereby an employee or former employee
foregoes their right to make a Freedom of Information or Data Protection
request.

If you have any queries about this letter, please do not hesitate to
contact me direct on (01642) 729696/729698 or email
[Middlesbrough Council request email]. Please remember to quote the reference number
shown above in any future communications.

If you are unhappy with the way your request has been handled you may ask
for an internal review. You should write to

Chris Davies,
Corporate Complaints Manager,
P.O. Box 503,
Ground Floor,
Town Hall,
Middlesbrough,
TS1 9FX
If you are not content with the outcome of the internal review, you have
the right to apply directly to the Information Commissioner for an
independent review. The Information Commissioner can be contacted at: -
Information Commissioner's Office,
Wycliffe House,
Water Lane,
Wilmslow,
Cheshire,
SK9 5AF
Yours sincerely

Scott Bonner
Corporate Initiatives Officer

Members' Office
P.O. Box 503
Ground Floor
Town Hall
Middlesbrough
TS1 9FX

Tel. 01642 729696

FAX. 01642 729882
Email: [Middlesbrough Council request email]

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Dear Middlesbrough Council,

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 fully to this request.

I am currently involved in research in this area and in order to
help and make the task somewhat more manageable, can I reduce the scope as follows?

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 2007 i.e. three further years. Thank you for the years you have provided - between 2008 and 2010 - this was indeed helpful

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'm not sure that the
possession of a data storage / retrieval system
which is not fully searchable warrants the use of an exclusion under the FOI Act. After all, the Act has been with us now for many years.

Thanks again and I look forward to your response,

Yours sincerely,

Paul Cardin

Middlesbrough Council

Dear Mr Cardin

REF NO: 2098.1 - Compromise Agreements
Thank you for your email received 1 February 2011 regarding our response
to the above mentioned FOI request.

In your original request you asked for records as far back as they were
held. We had already approached our Legal, Human Resources and Payroll
departments who all confirmed that they only held the information in a
central location for the three years we identified in our original
response.

I can see from the 'what do they know ' website that there were some
authorities that did have similar issues to ours and provided similar
responses, which is to be expected as each authority may have different
operating procedures, financial recording systems and/or HR filing systems
etc.

We may hold further information but to retrieve the previous years
information would require lengthy searches through all individual leaver's
paper and electronic files, plus any archived paper files, which we felt
would breach the appropriate fees limit even if we were to search one
isolated year. We were unable to suggest a way in which you could narrow
your request and therefore we refused to conduct a further search to
fulfil this part of your request as it would breach the approprite fees
limit.

After providing you with information for the years 2008-2010 you have now
redefined your request for information down to the years 2005 to 2007, and
have asked for us to exclude specified circumstances under which a
compromise agreement could have been issued. However, our process to
retrieve this information remains the same, and would still take in excess
of 18 hours as per our initial response and therefore we are refusing to
undertake this further search.

We can however say that there has never been a provision in any compromise
agreement that the employee forgo their right to approach us in future
with freedom of information or DPA subject access request.

If you have any queries about this letter, please do not hesitate to
contact me direct on (01642) 729696/729698 or email
[Middlesbrough Council request email]. Please remember to quote the reference number
shown above in any future communications.

If you are unhappy with the way your request has been handled you may ask
for an internal review. You should write to

Chris Davies,
Corporate Complaints Manager,
P.O. Box 503,
Ground Floor,
Town Hall,
Middlesbrough,
TS1 9FX
If you are not content with the outcome of the internal review, you have
the right to apply directly to the Information Commissioner for an
independent review. The Information Commissioner can be contacted at: -
Information Commissioner's Office,
Wycliffe House,
Water Lane,
Wilmslow,
Cheshire,
SK9 5AF
Yours sincerely

Scott Bonner
Corporate Initiatives Officer

Members' Office
P.O. Box 503
Ground Floor
Town Hall
Middlesbrough
TS1 9FX

Tel. 01642 729696

FAX. 01642 729882
Email: [Middlesbrough Council request email]

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Dear Middlesbrough Council,

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

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

I appreciate your full responses and the time you have devoted to this query. However, the councils struggling to satisfy this request appear to be in a minority. It is for this reason that I am asking you to make extra endeavours to secure the information. I have been led to believe that public information should be kept for a full six years. There appears to be a kind of 'postcode lottery' at play here, dependent on whether data is stored centrally or not. I'd appreciate your efforts to overcome its ill effects on reasonable public access.

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

Middlesbrough Council

Dear Mr Cardin,

INTERNAL REVIEW ACKNOWLEDGEMENT - REF NO: 209.1.1.1 - REQUEST REF NO:
2098.1

I acknowledge that your request on 3 February 2011 for an internal review
has been received and is now being processed through the Councils appeals
procedure and a response will be provided within 20 working days.

Please note the officer now dealing with your enquiry is Mr Chris Davies.
Should you wish to contact him, you can do so at the following address:
Mr Chris Davies
Corporate Complaints Manager
P.O. Box 503
Ground Floor
Town Hall
Middlesbrough
TS1 9FX
If you have any further questions, please do not hesitate to contact me
direct on (01642) 729696 or email [Middlesbrough Council request email] Please
remember to quote the reference number shown above in any future
communications.

Yours sincerely,

Joseph Bartoletti
Records Management Officer

Members' Office
P.O. Box 503
Ground Floor
Town Hall
Middlesbrough
TS1 9FX

Tel. 01642 729696/729698

FAX. 01642 729882
email: [Middlesbrough Council request email]

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Middlesbrough Council

1 Attachment

Dear Mr Cardin

Please find attached a copy of the response in relation to your request
for an internal review of the above request

Regards

Sylvia Reynolds

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Paul Cardin left an annotation ()

Middlesbrough Council went to internal review, before deciding against supplying 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