Total Annual Figures for Compromise Agreements, etc.

Paul Cardin made this Freedom of Information request to Southwark 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 refused by Southwark Borough Council.

Dear Southwark Borough Council,

Please supply Annual totals for the followig:

As far as records go back, the annual figures for the total
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 - 1; 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

Janet McDonald, Southwark Borough Council

Southwark Council - Information request

Our reference: 121921

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Dear Janet McDonald,

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

Although I have received no response, to assist, and as an act of good faith, I would like to 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
5. Purely voluntary severance 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.

Yours sincerely,

Paul Cardin

null EandHAccessInfo, Southwark Borough Council

Southwark Council - Information request

Our reference: 128506

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Dear null EandHAccessInfo,

Thank you.

Please check my original query AND the revised one which reduced the scope. You appear to have sent the WRONG information,

Yours sincerely,

Paul Cardin

McDonald, Janet, Southwark Borough Council

Dear Mr Cardin

I write to acknowledge receipt of your email received on Monday 7
February noting your amendments to your original request.

Please accept our apologies for the delay in providing a substantive
reply to your request.

I can confirm that we do hold information falling within the terms of
your request. However, due to key officers being absent from the office,
we would request an extension of 5 working days to enable us to provide
you with a full response.

If you have any queries or concerns then please contact us using the
above details.

If you are unhappy with the service you have received in relation to
your request and wish to make an appeal for a review of our decision,
you should write to the Corporate Freedom of Information Officer at:
Corporate Freedom of Information Officer

The Governance Team (2nd floor)
PO Box 65429'
London SE1 5LX
Email: [Southwark Borough Council request email]

If you are not content with the outcome your appeal, you may apply
directly to the Information Commissioner for a decision. Generally, the
Information Commissioner cannot make a decision unless you have first
exhausted our internal appeal procedure and you should contact him
within 2 months of the outcome of your internal appeal.

Further information on the Freedom of Information Act is available
through the Information Commissioner at the:
Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire. SK9 5AF
Telephone: 01625 545 700
Internet: www.informationcommissioner.gov.uk

Regards

Janet McDonald
Corporate Freedom of Information Officer
Communities, Law & Governance
P.O. Box 64529
London SE1P 5LX
Email: [email address]
Tel No: 020 7525 7511
Fax No: 020 7525 7675

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email?

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Dear Janet,

Thanks for your reply. Please use the next 5 working days to formulate your response.

In order to clear up any possible uncertainty, please can I highlight the second question within the original request regarding FOI / DPA clauses - please answer this along with the "reduced scope" request that was sent later.

Many thanks in advance,

Yours sincerely,

Paul Cardin

Janet McDonald, Southwark Borough Council

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Southwark Council - Information request

Our reference: 121921

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Dear Janet McDonald,

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. To date, since January 1st 2011, I have had 223
(two hundred and twenty three) full and detailed positive responses.
These councils did not have any difficulty in responding to my request.

I am currently involved in research in this area, with the aim of viewing trends and movements nationally. When your response didn’t arrive within the first 20 working days, I reduced the scope, in good faith and in order to make the task more manageable.

I asked if you could exclude COT3 agreements, also 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. Purely voluntary severance situations

I also assisted you further, by narrowing the time period down to between the years 2005 to 2010 i.e. the last six years.

Given that a total of 223 councils did not find any difficulty, I imagine that they may be taking a different approach to locating the information. They may also be of the opinion, as I am, that the public interest in releasing this information outweighs the public interest in not releasing it.

Your response does not instil confidence in me, as you have not advised me of any plans to replace what appears to be a cumbersome and inadequate data storage / retrieval system. The public are not being served well here and there appear to be no plans to remedy that - despite the FOI Act being in place for the last 11 years.

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.

I’m wary of frittering away public money and don’t want to resort to an internal review too quickly, and I would ask you to reconsider the request in light of all the above.

I look forward to receiving your response,

Yours sincerely,

Paul Cardin

Dear Southwark Borough Council,

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

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

Your response is now long overdue. I HAVE narrowed the scope of my query.

This request has now been responded to positively and in full by 251 English Councils since 1st January 2011. I'd appreciate it very much if while conducting this internal review, you took into account all the
questions and information I have supplied to date.

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

McDonald, Janet, Southwark Borough Council

1 Attachment

THIS MESSAGE IS SENT ON BEHALF OF NORMAN COOMBE

Please see attached acknowledgement

Regards

Janet McDonald
Corporate Freedom of Information Officer
Communities, Law & Governance
P.O. Box 64529
London SE1P 5LX
Email: [email address]
Tel No: 020 7525 7511
Fax No: 020 7525 7675

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email?

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Dear McDonald, Janet,

Hi. Any news on the internal review please?

Yours sincerely,

Paul Cardin

Coombe, Norman, Southwark Borough Council

1 Attachment

Dear Sir,

please find enclosed a response. Please accept my apologise for the
delay in responding.

Norman Coombe
Principal Lawyer
Communities, Law & Governance

Postal address:
Southwark Council, 2nd floor, PO Box 64529, London, SE1P 5LX

Physical address:
Southwark Council, 160 Tooley Street, London, SE1 2QH

Tel: 0207 525 7678
Fax: 0203 014 8598
Email [email address]

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Dear Coombe, Norman,

Thanks but you haven't addressed the second part of my query i.e.

"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."

......Despite me highlighting this at one point. I look forward to a rapid response as it's now 85 working days since the original request was lodged.

Yours sincerely,

Paul Cardin

Coombe, Norman, Southwark Borough Council

Dear Mr Cardin,

I will provide a response on this within 5 working days

Norman Coombe
Principal Lawyer
Communities, Law & Governance

Postal address:
Southwark Council, 2nd floor, PO Box 64529, London, SE1P 5LX

Physical address:
Southwark Council, 160 Tooley Street, London, SE1 2QH

Tel: 0207 525 7678
Fax: 0203 014 8598
Email [email address]

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Coombe, Norman, Southwark Borough Council

1 Attachment

Dear Sir,

please find attached a further letter.

Norman Coombe
Principal Lawyer
Communities, Law & Governance

Postal address:
Southwark Council, 2nd floor, PO Box 64529, London, SE1P 5LX

Physical address:
Southwark Council, 160 Tooley Street, London, SE1 2QH

Tel: 0207 525 7678
Fax: 0203 014 8598
Email [email address]

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Dear Coombe, Norman,

Hi. Have spent half an hour trying to unzip that and create something that makes sense, but without any success. Please can you either send a word / pdf document with the info in plain language or type an open reply?

thanks in advance,

Yours sincerely,

Paul Cardin

Coombe, Norman, Southwark Borough Council

1 Attachment

Sorry please find word document

Norman Coombe
Principal Lawyer
Communities, Law & Governance

Postal address:
Southwark Council, 2nd floor, PO Box 64529, London, SE1P 5LX

Physical address:
Southwark Council, 160 Tooley Street, London, SE1 2QH

Tel: 0207 525 7678
Fax: 0203 014 8598
Email [email address]

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Paul Cardin left an annotation ()

To help others, including local council tax payers, this was the final response from the Principal Lawyer:

Dear Mr Cardin

Re: Your request for information: Ref No. 121921 (0)

Further to our letter of 5 May 2011.

You asked in your original request:

"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."

As stated in our letter of 5 May 2011 it has been confirmed the information that you
requested in your appeal letter cannot be released as having considered your request
we have estimated that it will cost more than the appropriate limit to consider your
request. The appropriate limit is specified in regulations and for local government is
set at £450. This represents the estimated cost of one person spending 18 hours in
determining whether we hold the information, and locating, retrieving and extracting the
information. Consequently, we are not obliged by the Freedom of Information Act 2000
to respond to your request.

In order to find this information the legal department would have to:
1. review computer records of matters opened over the six years;
2. review billing guides for payments made over the last six years;
3. review all employment fee earners' electronic files over the last six years;
4. compare 1,2 and 3 to identify any missing information e.g. compromise
agreements prepared under general advice codes or agreements which were
prepared but not executed, done after ET claims were issued;
5. retrieve physical files from archive to check final agreements

We estimate that this would take at least 18 hours, excluding archive retrieval. In
addition this would only find those dealt with by the in-house legal team.

As previously stated if you are dissatisfied with this decision you may request the
Information Commissioner to investigate, and you should contact him within 2 months of
this outcome to your internal appeal. You may contact the commissioner at the:

Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow

Communities, Law & Governance, Legal Services, London SE1 5LX
Switchboard - 020 7525 5000 Website - www.southwark.gov.uk
Chief Executive – Annie Shepperd

Cheshire. SK9 5AF
Telephone: 01625 545 700
Internet: www.informationcommissioner.gov.uk

Yours sincerely,

Norman Coombe
Principal Lawyer

I had hoped that, like the majority of other councils who responded either fully or in part to this request, that the senior legal person on site would have KNOWN or at least discovered what the council's policy was in this sort of area, and passed the news on to the public.

Instead, it's a blanket 'costs' exemption response - which helps nobody, and creates suspicion about the council, its motives, and brings about another appeal to the ICO.

Paul Cardin left an annotation ()

Southwark Borough Council went to internal review, before deciding against supplying the information. This internal review failed and I will now appeal to the Information Commissioner's Office.

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