Total Annual Figures for Compromise Agreements, etc.

Paul Cardin made this Freedom of Information request to Ealing 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 successful.

Dear Ealing Borough Council,

Please supply totals for the following:

As far as records go back, the annual figures for the total number of current employees / ex-employees of Ealing 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 Ealing 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

foirequests foirequests, Ealing Borough Council

1 Attachment

Dear Mr Cardin,

Thank you for your Freedom of Information request.

Please find attached our acknowledgement for your records.

Kind Regards,
Davina

show quoted sections

foirequests foirequests, Ealing Borough Council

1 Attachment

Dear Mr Cardin,

Thank you for your recent Freedom of Information request.

Please find attached our response.

Kind Regards,
Davina

show quoted sections

Dear Davina,

This is one of the most thorough and detailed responses I have received. Thank you very much for this and for a very quick response.

Is it possible to further confirm that none of the quoted Compromise Agreements include any of the following:

1. Redundancy situations
2. TUPE situations
3. COT3 agreements (tribunal proceedings)
4. Equal pay claims

I ask this in order to ensure that your figures are related to the circumstances I quoted in the original query - which relate to circumstances where an employee will have left the council, but avoided taking their employer to tribunal.

I would not want your figures to be falsely inflated by the inclusion of the more common cases, such as equal pay and redundancy.

many thanks in advance,

Yours sincerely,

Paul Cardin

foirequests foirequests, Ealing Borough Council

Dear Mr Cardin,

I have asked my colleagues to clarify further. We will respond to you as soon as I have the information.

Kind Regards,
Davina

show quoted sections

foirequests foirequests, Ealing Borough Council

Dear Mr Cardin,

Thank you for your email and your kind words.

I confirm that the figures which were previously supplied DO include all the 3 categories of dispute which you mention: redundancy situations; TUPE situations; equal pay claims.

As you may know, not all COT3 agreements arise out of tribunal proceedings. Furthermore, not all settlements of tribunal proceedings are by way of COT3.

The figures supplied earlier do include all compromise agreements whether by way of ACAS (a COT3 settlement) or not.

They also include all compromise agreements, whether litigation had been commenced or not.

The Council does believe that it has answered your original query as it was written.

Kind Regards,
Davina

show quoted sections

Dear Davina,

Many thanks for your clarification.

Please could I ask you to clarify the information further. For research purposes, I would like to discard any compromise agreements which are related to the following:

1. COT3 agreements
2. Equal pay claims
3. TUPE situations
4. Purely redundancy situations

I am researching this information on a national basis and comparisons will be employed. The exclusion of the above areas would enable me to research trends and movements properly, and to exclude any erroneous information that may have inadvertently been included,

many thanks in advance,

Paul Cardin

foirequests foirequests, Ealing Borough Council

1 Attachment

Dear Mr Cardin,

Thank you for your email and clarifying your request.

We will have to consider this as a new request. Please find attached our acknowledgement for your records.

Kind Regards,
Davina

show quoted sections

foirequests foirequests, Ealing Borough Council

1 Attachment

Dear Mr Cardin,

Please find attached a letter in relation to your recent FOI request.

Kind Regards,
Davina

show quoted sections

Dear Davina,

Thank you for your further response.

To take your points one by one:

Please disregard ALL COT3 agreements.
I was not taking the view that tribunal settlements were the same as COT3 settlements - because as you're aware, tribunals are avoided through COT3s.
I am not asking the council to make any distinction between cases in which proceedings were issued, and those in which they were not.

I am wishing to isolate and gain figures for those compromise agreements which are not purely associated with the othe 3 situations: TUPE, redundancy and equal pay - may I also include PILON (payment in lieu of notice)?

If I may specify what I am seeking, it is the omission of the above 5 areas (COT3, TUPE, redundancy, TUPE and PILON). I am hopeful that the remainder will (largely) refer to situations where the employment contract has found a mutually agreed termination - usually with the payment of a sum to secure the 'full and final settlement of all claims' that you referred to, arrived at to prevent the employee or employer resorting to press publicity or legal approaches in the future.

I am aware that there may be other instances that are not ruled out but I'm hopeful of reaching as accurate a picture as possible, without splitting too many hairs.

I appreciate your reference to the costs of fully researching this issue, but can I put this into a wider context and advise that in the last 20 days, 143 (one hundred and forty three) English councils have responded quidkly and in detail to a largely identical response.

These councils may have taken a different approach in order to secure the precise numbers, such as calls to the legal or Accounts department.

I remain hopeful that these departments will possess fully searchable electronic data storage / retrieval systems that can be queried effectively on behalf of the public - particularly in light of the fact that many years have now elapsed since the introduction of the FOI Act.

I thank you for your help, but I am not sure that inadequate storage methods will warrant an exclusion under the Act,

Yours sincerely,

Paul Cardin

foirequests foirequests, Ealing Borough Council

Dear Mr Cardin,

As the Council understands your request, it is as follows:

For as far as records go back, you would like the annual figures for the total number of current employees / ex-employees of Ealing Borough Council who have signed compromise agreements directly related to the resolving of dispute(s) / grievance(s) / internal and external investigation(s) / whistle blowing incident(s).

You do not wish the Council to make any distinction between agreements which were reached after employment tribunal proceedings were issued (and which therefore compromised those proceedings) and agreements which were reached in the absence of employment tribunal proceedings.

You do however wish the Council to exclude from the figures:

1. Any agreement which is a COT3

2. Any agreement where the predominant issue in dispute was a claim or potential claim under the Equal Pay Act 1970

3. Any agreement where the predominant issue in dispute was a claim or potential claim under the TUPE Regulations 1981 or 2006, or the Acquired Rights Directives, or for unfair dismissal for a transfer-related reason

4. Any agreement where the predominant issue in dispute was a claim or potential claim arising from an actual or proposed redundancy

5. Any agreement (other than those already caught by 1 to 4) where the predominant issue was that the employee was leaving employment without having received full contractual notice, and was receiving a compensatory payment in respect of loss of notice rights only

The Council proposes to attempt to collate the information by starting in 2010 and working backwards in reverse chronological order. If the costs limit is reached, then the council will cease collating the information and will supply you with the information which has been collated within the costs limit. I hope this is acceptable to you?

As mentioned previously, individual files will need to be examined in order to respond to the request.

Kind Regards,
Davina

show quoted sections

Dear foirequests foirequests,

Thanks for your response.

As mentioned previously, a growing number of English Councils (now a total of 165) have responded positively and in full.

These councils may have found a more effective way of searching their systems, along the lines previously suggested.

Please endeavour to use all means necessary and not necessarily one which will prove costly and unresponsive to the demands of the public interest.

Yours sincerely,

Paul Cardin

Dear foirequests foirequests,

The delay has been noted,

Yours sincerely,

Paul Cardin

foirequests foirequests, Ealing Borough Council

1 Attachment

Dear Mr Cardin,

Thank you for your recent request.

Please find attached our response.

Kind Regards,
Davina

show quoted sections

Dear foirequests foirequests,

Thanks for the time you've devoted to this request and for the extra information you provided regarding the cost of carrying out the search.

This has been quite a unique response, and I am most grateful for your dedication to serving the public interest in this instance,

Yours sincerely,

Paul Cardin

foirequests foirequests, Ealing Borough Council

Dear Mr Cardin,

I have passed your feedback onto the Legal Officer who provided the information.

Kind Regards,
Davina

show quoted sections

Paul Cardin left an annotation ()

Ealing Borough Council were one of the slower respondents of the 345 councils asked, taking 33 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