public sector settlements

Summary

The requester asked for detailed explanations, statistics, and policy documents regarding public sector private settlements, including factors like reputational risk and non-disclosure agreements. The Attorney General's Chambers refused to provide this information, stating it does not hold the data and that fulfilling the request would require substantial research and analysis not mandated by the Freedom of Information Act.

Key Facts

• The request was received on 14 January 2021 and the outcome was issued on 5 February 2021.
• The authority determined the information requested does not fall under their obligation to provide.
• The request was split into two parts, with the first part covering settlement factors and the second covering non-disclosure agreements.
• The Attorney General's Chambers does not monitor, analyze statistics, or determine policy on the Human Resource Management aspects mentioned.
• The response cites Section 8(3) of the Freedom of Information Act 2015 as the reason for refusal.

Data Disclosed

• 14 January 2021
• 5 February 2021
• Section 8(3)
• Freedom of Information Act 2015
• case_id: 1632057

Exemptions Cited

• Section 8(3) of the Freedom of Information Act 2015 (substantial research and analysis)

Original Request

Please explain any meeting discussion points, email threads, filenotes, reports, policy, strategy, budgetary targets, any typically more quantifiable factors such as reputational risk and employment market risk in relevant private sectors/segments to future income, any typically less quantifiable factors such as feelings, relative value of closure and physical health impact, reasonable offer bands etc etc that relate to public sector private settlements in the same way that the Employment and Equality Tribunal is able to reference, explain and apply calculations to support informed decisions by victims in what is typically a very stressful situation with no income due to impractical benefits rules towards victims of pending constructive dismissal claims and management obstruction to collate relevant evidence within legal proceedings deadlines, any variance in approach to victims of a single issue and a recurring pattern of abuse, any variance in approach between management and non-managenent grades, any variance in approach between civil servants and public servants in one or more parts of the wider public sector, and the (a) legal basis and (b) ethical justification of an insistence on non-disclosure agreements without any concomitant HR sanctions or any concomitant policy/process/procedure changes given the significant concerns reported by whistleblowers, the lack of legal aid and the lack of a more effective financial reward scheme to report HR issues, abuses of process, etc.

Data Tables (1)

Full Response Text

Attorney General's Chambers 2nd floor Belgravia House Circular Road, Douglas Isle of Man, IM1 1AE Telephone: (01624) 685452 E-mail: attgen@gov.im

Our ref: 1632057 5 February 2021

Dear ###

We write further to your request which was received on 14 January 2021 and which states:

"Please explain any meeting discussion points, email threads, filenotes, reports, policy, strategy, budgetary targets, any typically more quantifiable factors such as reputational risk and employment market risk in relevant private sectors/segments to future income, any typically less quantifiable factors such as feelings, relative value of closure and physical health impact, reasonable offer bands etc etc that relate to public sector private settlements in the same way that the Employment and Equality Tribunal is able to reference, explain and apply calculations to support informed decisions by victims in what is typically a very stressful situation with no income due to impractical benefits rules towards victims of pending constructive dismissal claims and management obstruction to collate relevant evidence within legal proceedings deadlines, any variance in approach to victims of a single issue and a recurring pattern of abuse, any variance in approach between management and non-managenent grades, any variance in approach between civil servants and public servants in one or more parts of the wider public sector, and the (a) legal basis and (b) ethical justification of an insistence on non-disclosure agreements without any concomitant HR sanctions or any concomitant policy/process/procedure changes given the significant concerns reported by whistleblowers, the lack of legal aid and the lack of a more effective financial reward scheme to report HR issues, abuses of process, etc." Thank you for your request. In order to deal with the same we have split it into two parts. First Part: “Please explain any meeting discussion points, email threads, filenotes, reports, policy, strategy, budgetary targets, any typically more quantifiable factors such as reputational risk and employment market risk in relevant private sectors/segments to future income, any typically less quantifiable factors such as feelings, relative value of closure and physical health impact, reasonable offer bands etc etc that relate to public sector private settlements in the same way that the Employment and Equality Tribunal is able to reference, explain and apply calculations to support informed decisions by victims in what is typically a very stressful situation with no income due to impractical benefits rules towards victims of pending constructive dismissal claims and management obstruction to collate relevant evidence within legal proceedings deadlines, any variance in approach to victims of a single issue and a recurring pattern

of abuse, any variance in approach between management and non-management grades, any variance in approach between civil servants and public servants in one or more parts of the wider public sector…” Second Part: “…(a) legal basis and (b) ethical justification of an insistence on non-disclosure agreements…” First Part The information that you have requested does not fall for us to provide under the Freedom of Information Act 2015. We refer to you Section 8(3) of the Freedom of Information Act 2015. The first part of your request asks us to provide information which would necessitate us: researching and analysing information that we hold; undertaking substantial collation of information that we hold; and deriving information from the information that we hold. We are not obliged to do any of these things by virtue of Section 8(3) of the Freedom of Information Act 2015 and as such we are not able to respond to the First Part of your request. By way of assistance to you, the AGC does not monitor, analyse statistics or determine policy on the aspects of Human Resource Management mentioned in your request. Rather, the legal team may support a public service organisation when legal advice is requested, but it would not necessarily be involved in an employment agreement. For that reason we suggest that you might consider referring your request to either the Manx Industrial Relations Service, who would be the authority on variance between the public sector private settlements and may hold the statistical analysis you require. Alternatively, the Human Resource function for public sector employees rests with the Public Service Commission which is administratively supported by the Cabinet Office and that Department may be able to assist you. Second Part We do not hold such information and would confirm that we cannot provide legal advice to the general public, via a Freedom of Information request or otherwise. However we would take this opportunity to further assist you by confirming: a) It is not possible in law to contract out a worker’s right to make a protected disclosure i.e. whistleblowing;
b) A non-disclosure agreement doesn’t preclude further protected disclosures being made, including after any termination of employment. Workers continue to enjoy protection in law if qualifying disclosures have been made, even after their employment has come to an end, irrespective of when a qualifying disclosure is made; c) The non-disclosure element of a settlement agreement usually relates to the fact of a settlement having been reached and the amount and other terms of the settlement and usual includes mutual non-disparaging clauses. It is not designed to, nor does it, apply to protected disclosures;

d) Such an agreement is mutually agreed as part of the settlement package and cannot be unilaterally insisted upon i.e. neither the Worker nor the Employer is
obliged to accept the terms of any settlement if a non-disclosure agreement is “part of the deal While our aim is to provide information whenever possible, in this instance the Attorney General’s Chambers (AGC) does not hold or cannot, after taking reasonable steps to do so, find the information that you have requested. If we have misinterpreted your request please confirm so that we may reconsider our response. Please quote the reference number 1632057 in any future communications.

Your right to request a review

If you are unhappy with this response to your freedom of information request, you may ask us to carry out an internal review of the response, by completing a complaint form and submitting it electronically or by delivery/post.

An electronic version of our complaint form can be found by going to our website at https://services.gov.im/freedom-of-information/Review . If you would like a paper version of our complaint form to be sent to you by post, please contact me and I will be happy to arrange for this. Your review request should explain why you are dissatisfied with this response, and should be made as soon as practicable. We will respond as soon as the review has been concluded.

If you are not satisfied with the result of the review, you then have the right to appeal to the Information Commissioner for a decision on; 1. Whether we have responded to your request for information in accordance with Part 2 of the Freedom of Information Act 2015; or 2. Whether we are justified in refusing to give you the information requested.
In response to an application for review, the Information Commissioner may, at any time, attempt to resolve a matter by negotiation, conciliation, mediation or another form of alternative dispute resolution and will have regard to any outcome of this in making any subsequent decision. More detailed information on your right to a review can be found on the Information Commissioner’s website at www.inforights.im. Should you have any queries concerning this letter, please do not hesitate to contact me. Further information about freedom of information requests can be found at www.gov.im/foi.

I will now close your request as of this date.

Yours sincerely