Total Annual Figures for Compromise Agreements, etc.

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

Dear Croydon Borough Council,

Please supply totals for the following:

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

Morris, Valerie, Croydon Borough Council

1 Attachment

Dear Mr Cardin

Thank you for your email/letter dated the 2 January 2011 in which you have
requested among other matters information regarding the total annual
figures for Compromise Agreements etc paid out by the London Borough of
Croydon.

We are considering your request under the terms of the Freedom of
Information Act 2000, and hope to respond within the statutory 20 working
days.

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

If you have any queries about this email, please contact me. Please
remember to quote the reference number above in any future communications.

Yours sincerely

Valerie Morris

Contract Monitoring Officer

Chief Executive's Office

Democratic & Legal Services Division

5th Floor South Side

Taberner House

Park Lane Croydon

CR9 3JS

Tel: 0208 686 4433 ext. 62676

Fax: 0208 760 5679

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Passman, Howard, Croydon Borough Council

1 Attachment

Dear Mr. Cardin,

Further to your email dated 2 January 2011, in which you have requested
information in respect of compromise agreements. We have considered your
request under the terms of the Freedom of Information Act 2000 and are
able to supply you with the following information in response to your
questions below.

"Since the inception of Croydon Borough Council, or as far as records go
back, the annual figures for the total number of current employees /
ex-employees of Croydon Borough Council who have signed compromise
agreements directly related to the resolving of dispute(s) / grievance(s)
/ internal and external investigation(s) / whistleblowing incident(s)."

The Freedom of Information (Fees and Appropriate Limit) Regulations 2004
specify an "appropriate limit" for the amount of time the Council needs to
spend undertaking retrieving requested information. If the Council
estimates it will take more than that, then under s.12 of the FOIA, it is
not obliged to carry comply with that request. The appropriate limit
currently specified by the Regulations for local authorities is £450.
This represents the estimated cost of one person spending 2½ working days
in locating, retrieving and extracting the information from where it is
stored. We estimate that the cumulative time it would take officers to
locate the requested information would exceed the appropriate limit as
only limited compromise agreement data has been recorded since 2008.
Therefore, we are unable to disclose the information you are seeking and
will not be processing your request further in respect of records of
agreements before that date or the specific categories of dispute as
detailed in your request. Therefore, we are unable to disclose the
information you are seeking and will not be processing your request
further.

However in respect of the limited data recorded since 2008 the Council is
able to supply you with the following information. Please note that the
total number given for recorded compromise agreements will include those
related to the specific categories of dispute you refer to:

· Part financial year: January - March 2008: x 6

· Financial year April 2008 - March 2009: x 20

· Financial year April 2009 - March 2010: x 55

· Due to our reporting year being April - March the data relating
to 20010/11 is not yet available.

Please also note that this data includes school related compromise
agreements for those schools where the Council provided the human
resources service at the time of the agreement.

"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 Croydon Borough 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."

This data is not recorded; however it is not Council's custom & practise
to include this specific restriction in compromise agreements.

If you are dissatisfied with the way the council has handled your request
under the Freedom of Information Act you may ask for an internal review.
This should be submitted to us within 40 working days of this response.
You can do this by outlining the details of your complaint and either:

o e-mailing us at [Croydon Borough Council request email]
o faxing us on 0208 760 5679
o writing to FOI Complaints, London Borough of Croydon, Democratic and
Legal Services, Croydon, CR9 3JS

Any requests received after the 40 working day time limit will be
considered only at the discretion of the council.

If you are not content with the outcome of the internal review, you have
the right to apply directly to the Information Commissioner for a
decision. The Information Commissioner can be contacted at:

o Information Commissioner's Office, Wycliffe House, Water Lane,
Wilmslow, Cheshire, SK9 5AF

Yours sincerely,

Howard Passman

Information Management Manager

Democratic & Legal Services Division

Southside, 5th Floor Taberner House

Park Lane, Croydon CR9 3JS

020 8726 6000 ext. 62318

www.croydon.gov.uk

www.croydononline.org

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Dear Howard,

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 144 (one hundred and forty
four) full and detailed positive responses. These councils did not
have any difficulty in responding to the request in full.

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 144 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 an inability to trace records back beyond a few years
warrants the use of an exclusion under the FOI Act.

The FOI Act has been with us for several years - but this makes it no less relevant. Similarly, your own historical data is as important today and I would appreciate it if you could make every effort to track down the figures,

many thanks in advance,

Yours sincerely,

Paul Cardin

Dear Croydon Borough Council,

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

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

As you haven't responded to the message I sent which reduced the scope of the request in good faith, and made other suggestions for locating the information, please carry out an internal review. As an update, to date, since 1st January, 223 (two hundred and twenty three) of your LGA colleagues have responded positively and in full to an identical request.

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

Stockton, Jessica, Croydon Borough Council

Dear Sir,

I acknowledge receipt of your email dated 20 February 2011 requesting a
review. This matter has now been allocated to me to deal with as an
Internal Review. As you will be aware, the Information Commissioner
recommends that internal reviews are undertaken within 20 working days
following receipt of the request, in other words, by 18 March 2011. I have
requested information from relevant officers which will allow me to
consider the request and I will revert to you once I have the information
to hand and have had an opportunity to consider it in relation to the
provisions of the Freedom of Information Act.

Yours sincerely

Jessica Stockton

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Dear Stockton, Jessica,

Please can you tell me how a request for an internal review dated 20th February took 12 working days to finally reach you?

It's just that it doesn't look good, or in the spirit of the Act, to start counting the 20 working days from 8th March, rather than the day you admitted it was received at the council i.e. 20th February.

I'd appreciate some explanatory info,

Yours sincerely,

Paul Cardin

Stockton, Jessica, Croydon Borough Council

Dear Sir,

Thank you for your email. The 20 working days referred to in my email have been calculated from the date of receipt of your 20 February email which is why I indicate that a response ought to be provided to you by 18 March rather than 5 April, which would have been the due date if calculation was done from 8 March.

Yours Sincerely

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Stockton, Jessica, Croydon Borough Council

Dear Sir,

Further to my emails of 8 and 9 March and your request for an internal
review, and confirm that I have been requested to undertake the review in
this matter. I have considered your request and the response you received
in accordance with the requirements of the Freedom of Information Act 2000
(FOIA 2000).

In your initial request of 2 January 2011, you asked for the total number
of employees or former employees who had signed compromise agreements in
four named circumstances. In addition, you asked for details about how
many of these were asked to forgo their right to approach the council in
future with FOI or DPA subject access requests. You asked that this
information be provided to you for as many years as records were retained
by the Council.

On 1 February 2011, the Council responded to your request indicating that
the exemption in section 12 was applicable however, in view of the duty
under section 16, the Council provided such limited information as was
held on its electronic systems which have been in place since 2008. The
information which the Council was able to provide you in answer to your
request regarding number of compromise agreements which fell within your
specific categories was as follows:

· Part financial year: January - March 2008: x 6

· Financial year April 2008 - March 2009: x 20

· Financial year April 2009 - March 2010: x 55

· Due to our reporting year being April - March the data
relating to 20010/11 is not yet available.

You were also advised that the data reflected above included school
related compromise agreements for those schools where the Council provided
the human resources service at the time of the agreement.

In respect of your request regarding whether there were clauses regarding
preventing contact under FOI/DPA from signatories to the compromise
agreements, you were informed that the Council does not record such
information on its systems; however it is not Council's custom & practise
to include this specific restriction in compromise agreements.

On 1 February 2011 you wrote again to the council altering the criteria
you wished to be applied to the figures of compromise agreements by
excluding 5 additional instances where compromise agreements may be
entered and as such asking for different and more specific data that
previously requested. In addition, you limited the time frame of your
request to the years 2005-2010.

In respect of your revised request I am advised as follows: The
information provided to you on 1 February 2011 was extracted from the
Council's human resources information system. The legal department does
not record data regarding the contents of compromise agreements, it is
only held by HR and similarly, finance does not hold details regarding the
reasons for entering into compromise agreements, which is the data
required to be considered in responding to your request. Since 2008 the
Council has recorded basic details of compromise agreements on the
electronic human resources information system: the date of the agreement;
the amount of payment; and whether or not an agreed reference was included
in the agreement. Compromise agreements entered into prior to 2008 are not
recorded electronically and the only way to establish whether or not such
an agreement exists for a current or former employee is to look on their
personnel file. Personnel files are paper records which, for former
employees are archived in an off-site storage facility. Collating
details of compromise agreements entered into before 2008, and checking
the compromise agreements entered into after 2008 for the conditions you
have specified will require manually examining some 9000 paper files of
current employees, retrieving and examining the personnel files of
hundreds of former employees. There is a direct cost to retrieving files
from the off-site storage as well as the time cost for examining the
files.

The reason for entering into a compromise agreement is not recorded on the
database nor is the detail you have requested held other than in the files
in question or, to a limited extent on the electronic database referred to
above. For details of compromise agreements entered in to since 2008 the
Council does not categorise the data in the manner in which you have
requested it and, without manually examining each personnel file such
information will not be available.

In addition, I am advised that in providing the information contained
within the 1 February email to you the Human resources and occupational
development service has already spent seven hours work which included
writing the report to extract the available information from the database
and validating that data. In light of the above, I consider that the
"appropriate limit" specified in the regulations would be exceeded in
responding to your full request and that section 12 of the Act is
accordingly applicable. The appropriate limit currently specified by the
Regulations for local authorities is £450. This represents the
estimated cost of one person spending 2½ working days in locating,
retrieving and extracting the information from where it is stored. As
such, I consider that the response provided to you on 1 February 2011 is
satisfactory.

If you are not content with the outcome of the internal review, you have
the right to apply directly to the Information Commissioner for a
decision. The Information Commissioner can be contacted at:

· Information Commissioner's Office, Wycliffe House, Water
Lane, Wilmslow, Cheshire, SK9 5AF

Yours Sincerely

Jessica Stockton

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Paul Cardin left an annotation ()

Croydon Borough Council went to internal review, before deciding against supplying most of 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