Total Annual Figures for Compromise Agreements, etc.

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

Dear Cherwell District Council,

Please supply totals for the following:

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

Anna Thornicroft,

Hello Paul,

Your request was received on 5 January 2011, and I am dealing with it
under the terms of the Freedom of Information Act 2000. I have 20
working days to reply, and aim to respond back to you by 1 February
2011.

In some circumstances a fee may be payable, and if this becomes the case
I will let you know. If you have any queries in the meantime, please
contact me.

Kind regards,

show quoted sections

HR Assistant
Chief Exec Support Team
Cherwell District Council
mailto:[email address]
www.cherwell.gov.uk
* A Cleaner, Greener Cherwell

show quoted sections

* Cherwell, An Accessible Value for Money Council

show quoted sections

Anna Thornicroft,

Dear Paul

Further to your freedom of information request, we can confirm that our People and Improvement department hold information relating to your request. However, in accordance with section 17 of the FOI Act, we advise that the following exemptions apply to your request:

We estimate that compliance with your request would exceed the appropriate costs limit under section 12 of the Freedom of information Act 2000. The appropriate limit has been specified in regulations and for central Government it is set at £450. This represents the estimated cost of one person spending 2½ working days in determining whether the department holds the information, and locating, retrieving and extracting the information. Under section 12 of the Freedom of Information Act the Department is not obliged to comply with your request and we will not be processing your request further.

If you have any queries about this response, please contact me. If you are unhappy with the service you have received, wish to make a complaint or ask for a review of our decision, you may contact our freedom of information officer mailto:[Cherwell District Council request email]. If you are not content with the outcome of your complaint, you may apply directly to the Information Commissioner for a decision. Details of contacting the ICO with a complaint can be found on their website: http://www.ico.gov.uk/complaints/freedom....

Kind regards,

show quoted sections

HR Assistant
Chief Exec Support Team
Cherwell District Council
mailto:[email address]
www.cherwell.gov.uk
* A Cleaner, Greener Cherwell

show quoted sections

* Cherwell, An Accessible Value for Money Council

show quoted sections

Dear Anna Thornicroft,

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 90 full and detailed positive responses. These councils did not have any difficulty in responding
to a perfectly reasonable request.

I am currently involved in research in this area and in order to make the task somewhat more manageable, can I make the following changes?

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 90 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,

many thanks in advance,

Yours sincerely,

Paul Cardin

AnneMarie Scott,

Dear Paul

Thank you for your further emailed dated 25th January relating to our response to your Freedom of Information request number 652. Again, we are sorry that we were unable to comply with your request to supply the information.

We had already approached our Legal, Human Resources and Payroll departments who all confirmed that they did not keep a log containing the information you originally requested. To retrieve the information would require searching through all their current paper files, all archived paper files, and all archived electronic and microfiched files. To search for even one isolated year would still require this same process, so we were unable to suggest a way in which you could narrow your request.

You have now narrowed your request for information down to the years 2005 to 2010, and have asked for us to exclude specified types 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.

Following your email of the 25th, our Payroll department have been able to identify some partial information from our current payroll software dating from February 2007 to the present date. Records prior to this are held in archive. Here is the information we are able to supply:

2010/11 no compromise agreements to date have been issued relating to the criteria specified.
2009/10 three compromise agreements were issued relating to the criteria specified.
2008/09 no compromise agreements were issued relating to the criteria specified.

None of the agreements issued specified a conditional agreement that the employee forgo their right to approach us in future with freedom of information or DPA subject access requests.

The information supplied continues to be protected by the Copyright, Designs and Patents Act 1988. You may apply to us if you would like to re-use our information - details can be found on our website http://www.cherwell.gov.uk/index.cfm?art....

If you have any queries about this response, please contact me. If you are unhappy with the service you have received, wish to make a complaint or ask for a review of our decision, you may contact our freedom of information officer mailto:[Cherwell District Council request email]. If you are not content with the outcome of your complaint, you may apply directly to the Information Commissioner for a decision. Details of contacting the ICO with a complaint can be found on their website: http://www.ico.gov.uk/complaints/freedom....

Regards

Anne-Marie Scott, FCIPD, Head of People and Improvement, Cherwell District Council, [email address], Direct dial: 01295 221731

show quoted sections

Paul Cardin left an annotation ()

Cherwell District Council were one of the slower respondents of the 345 councils asked, taking 22 working days (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