Total Annual Figures for Compromise Agreements, etc.

Paul Cardin made this Freedom of Information request to Tendring District 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 Tendring District Council,

Please supply Annual totals for the following:

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

Alison Rowlands, Tendring District Council

Dear Mr Cardin

Reference: ACR/FOI/00611

Further to your email of 8 January 2011, I have liaised with the relevant
department, Human Resources and Customer Services (HR&CS). I am informed
that Tendring District Council does not hold a central register of
Compromise Agreements and accordingly, that to establish the information
you seek, a manual review of all staff files (including seasonal, casual,
temporary and former employees) would be necessary. HR&CS have estimated
that there are approximately 1000 applicable files and that a review would
take approximately 15 minutes per file.

With the above in mind, I must advise that to comply with your request and
provide the entirety of the information you are seeking would, in terms of
officer time, exceed the reasonable limit permitted under Section 12 of
the legislation. As you may be aware, public authorities are entitled to
levy a fee for complying to requests in those instances where they
estimate that the determination, location, retrieval and extraction of
information is likely to involve over 18 hours of officer time, with the
minimum charge being £450 (equivalent to £25 per hour). In this
instance, the number of hours it would take to identify what information
matching your requirements is held are estimated to be no less than 250,
which equates to a cost of £6,250.

If you wish to consider pursuing your request in its current form, please
let me know and I will issue the requisite fees notice setting out the
amount payable to the authority in respect of all the data. However, in
view of the circumstances, you may prefer to consider refining your
request, in order to allow compliance within the reasonable time limit or,
indeed, withdrawing the request altogether. A reformulated request which
narrows the scope of the information being sought can be submitted direct
to me and will be treated as a fresh enquiry.

In closing, I hope I have adequately explained the position and will await
your response.

Yours sincerely

Alison Rowlands
Corporate Information Manager
Legal Services
Tendring District Council

E-mail [email address]
Tel. 01255 686569
Minicom 01255 422470
Web [1]www.tendringdc.gov.uk

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Dear Alison Rowlands,

Thank you for your response. If I can clarify my request a little further, this may assist you to find and release the information.

Please restrict your enquiry to the last 6 years i.e. 2005 to 2010.

Also, can you exclude compromise agreements related to the following circumstances:

1. TUPE situations
2. Purely redundancy situations
3. Equal pay claims
4. COT3 agreements (where tribunal proceedings have been initiated)

If I can explain a little more, such compromise agreements are ALL extremely likely to be restricted to employees who have now left the council, hence there will be no need to plough through "all staff files".

As for information not held centrally, please contact your legal department (or the body acting as such, and presumably keeping records of such agreements). A simple phone call may come up trumps.

I don't believe an inadequate storage and retrieval system is a suitable justification for not providing free and fair access to public information, nor do I think an exemption exists in the Act on these grounds.

I look forward to your response,

Yours sincerely,

Paul Cardin

Emma Horne, Tendring District Council

Dear Mr Cardin,

Further to your request, I can confirm the following for the period
2005-2011:-

1) TUPE situations - 3 transfers take place to another authority.

2) Purely redundancy - 3 employees who have been made redundant

3) Equal Pay Claims -no Equal Pay Claims

4) COT3 Agreements

2005/06 1
2008/09 1
2009/10 0
2010/11 1

Kind regards

Emma Horne

Human Resources Manager

Human Resources and Customer Services

Tendring District Council

( (01255) 686305

8 [1][email address]

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Dear Emma Horne,

Thanks for the information, however I asked you to EXCLUDE those areas and to provide total annual figures for compromise agreements which didn't relate to those in particular.

I look forward to a revised response,

Yours sincerely,

Paul Cardin

Emma Horne, Tendring District Council

Dear Mr Cardin,

The figures that have been provided to you, meet your criteria, as requested.

Kind regards

Emma Horne
Human Resources Manager

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Dear Emma Horne,

I will have to respectfully disagree with you.

You have confused matters by presenting the following:

4) COT3 Agreements

2005/06 1
2008/09 1
2009/10 0
2010/11 1

Is this a list of totals for COT3 Agreements? (that's what it looks like)

Or did you just make a meaningless statement reading "4) COT3 Agreements"

Or is it the total number of the remaining applicable compromise agreements.

With respect, the presentation of this information left a lot to desire.

Please re-advise,

Yours sincerely,

Paul Cardin

Dear Tendring District Council,

Please can you also address the second part of my request i.e. Does/has the council, as part of any compromise agreement issued, attempted to prevent signatory parties from exercising their statutory rights concerning FOI / DPA requests in the future?

Yours faithfully,

Paul Cardin

Emma Horne, Tendring District Council

Dear Paul Cardin,

I can confirm that the information provided is accurate and the table has
been reformatted as per your original request:

Therefore the information is: 2006- 1; 2007- 0; 2008- 1; 2009- 0;
2010- 1

These figures are excluding compromise agreements related to the following
circumstances:

1. TUPE situations

2. Purely redundancy situations

3. Equal pay claims

4. COT3 agreements (where tribunal proceedings have been initiated)

Kind regards

Emma Horne

Human Resources Manager

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Dear Emma Horne,

Please can you also address the second part of my request i.e.
Does/has the council, as part of any compromise agreement issued,
attempted to prevent signatory parties from exercising their
statutory rights concerning FOI / DPA requests in the future?

Yours sincerely,

Paul Cardin

Emma Horne, Tendring District Council

Dear Paul Cardin,

Tendring District Council does not prevent officers from exercising their rights under the Freedom of Information or Data Protection.

Kind regards

Emma Horne
Human Resources Manager

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Dear Emma Horne,

Thanks for your response.

I did not state 'officers' - I referred to signatory parties to compromise agreements. These are usually people who have become ex-employees, and have agreed to a confidentiality clause within a compromise agreement - usually after being given a 'financial incentive' - which others would ungraciously call 'hush money'.

The question in my last email should be addressed with these people in mind if you'd be so kind?

Yours sincerely,

Paul Cardin

Emma Horne, Tendring District Council

Dear Paul Cardin,

The term 'officers' is the for Local Government employees, and I can confirm that the data presented to you is inclusive of ex-employees.

I hope this clarifies the enquiry.

Kind regards

Emma Horne
Human Resources Manager

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Dear Emma Horne,

Many thanks for your reply,

Yours sincerely,

Paul Cardin

Paul Cardin left an annotation ()

Tendring District Council were one of the slower respondents of the 345 councils asked, taking 21 working days (just 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

Dave rimmer left an annotation ()

Paul,
Are these people totally incompetent or are they just being obstructive. I find it hard to believe a L/A Human Resources Manager cannot accurately define a FOI question

Paul Cardin left an annotation ()

It's funny isn't it Dave? But when the laughter subsides, your left with the question, "Can I be confident that handing well over £100 every month to these people is a good idea?"