Bonus payments

Summary

The request sought details on bonus payments to Department for Enterprise staff over five years, including counts, totals, and specific KPIs. The authority disclosed the number of recipients and total amounts paid but withheld specific performance metrics citing personal data exemptions.

Key Facts

• Approximately 5% of the Department for Enterprise workforce operates under individual contracts allowing for performance-related pay.
• Bonus payments are not guaranteed and are linked to general divisional or agency plans rather than specific individual KPIs.
• The number of staff receiving bonuses ranged from 3 to 7 annually over the five-year period.
• Specific details on the basis of payments were withheld to prevent the identification of individuals.
• Individual contracts often feature lower base salaries and lack pension contributions compared to standard public service roles.

Data Disclosed

• 2023/24: 7 recipients, £81,676 total
• 2022/23: 3 recipients, £46,200 total
• 2021/22: 3 recipients, £31,075 total
• 2020/21: 3 recipients, £33,135 total
• 2019/20: 3 recipients, £30,443 total
• 5% of total workforce on individual contracts
• Request received: 2025-01-09
• Response date: 2025-02-05

Exemptions Cited

• Section 25 of the Freedom of Information Act (Personal information)

Original Request

For each of the past five years: 1) how many DfE staff have received bonus payments? 2) in each case what was the basis of those payments, i.e. to what specific metrics or KPIs were they linked? 3) what was the total amount of bonus payments for each year?

Data Tables (1)

Full Response Text

Freedom of Information Co-ordinator 1st Floor, St Georges Court Upper Church Street, Douglas Isle of Man IM1 1EX

Telephone: (01624 686400) Website: https://www.iomdfenterprise.im/

Our ref: 4359093 5 February 2025

Dear ###

We write further to your request, received 9 January 2025, which states:

"For each of the past five years:

1) how many DfE staff have received bonus payments?

2) in each case what was the basis of those payments, i.e. to what specific metrics or KPIs were they linked?

3) what was the total amount of bonus payments for each year?"

Our response to your request is as follows:

In order to provide some context to the award of bonus payments to staff members, the Department, many years ago when as the Department of Economic Development, was granted the ability to offer Individual Contracts, outside the Public Services Commission normal structure, specifically to attract and retain private sector expertise across a wide range of specialisms, with flexibility as to payment terms that were commercially facing and could be tailored to attract the right individuals with relevant expertise.

Since this permission was granted, the Department today has around 5% of its total workforce set against these contracts, all individually negotiated. This has allowed the Department to propose and award limited term contracts outside the main Public Service Commission, where base salary is only part of the package and new jobs require rating alongside other comparable roles.

It should be noted however that these Individual Contracts

a) Are generally only awarded for specific Limited Term Appointments – they are normally not long term or permanent contracts and the individuals involved therefore carry a risk of contracts not being renewed. b) do not include any pension contribution – this has to be dealt with by the post holder on a personal basis. 2 | P a g e
c) may include an element of performance related pay – with targets set and reported against, and in doing so the base level of salary may be lowered to take this into account. Any such bonus payments are not guaranteed and therefore at risk to the individual. d) do not attract the full suite of benefits including the range of sick pay and entitlements available to other public service roles

As a consequence, whilst the headline rate for the role, including basic pay and bonus ultimately awarded, is priced to take into account these factors and is often less than the equivalent public service permanent position might be, if the total cost of reward was to be included. This structure has been essential for securing private sector expertise.

Whilst such contracts are unusual across the Public Service, they are typical in the private sector and reflect the diverse nature of the Department and the individuals carry the risk of termination of contract, any bonus payments are not guaranteed and they have far less benefits than an equivalent public service role.

For each of the past five years:

1) How many DfE staff have received bonus payments? and

3) what was the total amount of bonus payments for each year?"

For the sake of clarity, the following table shows the numbers of individuals receiving a bonus payment in the last 5 years and the total amount of those payments.

Year Number Total Paid 2023/24 7 £81,676 2022/23 3 £46,200 2021/22 3 £31,075 2020/21 3 £33,135 2019/20 3 £30,443

2) in each case what was the basis of those payments, i.e. to what specific metrics or KPIs were they linked?

Bonus payments are made for differing reasons, entirely dependent on the post and the requirements of the post, where the KPI’s upon which the bonuses were paid are not specific and are based on the general achievement of a divisional or agency plan and these have been published. The relevant programmes and plans can be found at these links:

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https://www.gov.im/media/1382982/business-iom-programme-2024- final_compressed.pdf https://www.gov.im/media/1382984/web-digital-iom-programme- 2024_compressed.pdf https://www.gov.im/media/1382985/visit-2024-programme_compressed.pdf https://www.gov.im/media/1382983/finance-isle-of-man-2024- programme_compressed.pdf https://www.gov.im/media/1383993/final-department-plan-2024_compressed.pdf https://www.iomdfenterprise.im/media/2ktbpllj/2022-gd-0037_compressed.pdf https://www.iomdfenterprise.im/media/xb4jc53v/finance-isle-of-man-2023- programme.pdf https://www.iomdfenterprise.im/media/b2uc0de5/diom-programme_final.pdf https://www.iomdfenterprise.im/media/0a5kee2p/visit-2024-programme.pdf https://www.iomdfenterprise.im/media/lj1f5uan/business-isle-of-man-2023- programme.pdf

The Department considers that for the release of any information more specific that that provided through these links an exemption under Section 25 of the Act is appropriate in this case as it would be possible to identify individuals from this information. Section 25 Personal information consideration of exemption. Section 25(2) of FOIA provides that information is exempt from disclosure if it is the personal data of an individual other than the requester and where one of the conditions listed in section 25(2)(b) is satisfied. In this case the relevant condition is contained in section 25(2)(b)(i). This applies where the disclosure of the information to any member of the public would contravene any of the principles relating to the processing of personal data set out in Article 5 of the applied General Data Protection Regulation (the applied GDPR) (‘the DP principles’).
The first step for the Department is to determine whether the withheld information constitutes personal data as defined by the Data Protection Act 2018 (DPA) (Article 4 of the applied GDPR). If it is not personal data, then section 25 of FOIA cannot apply.
Secondly, and only if the Department is satisfied that the requested information is personal data, the Department must establish whether disclosure of that data would breach any of the data protection principles under the DPA

Is the information personal data?
Article 4(1) of the applied GDPR defines personal data as:- any information relating to an identified or identifiable natural person. The two main elements of personal data are that the information must relate to a living person and that the person must be identifiable.
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An identifiable living individual is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of the individual.
Information will relate to a person if it is about them, linked to them, has biographical significance for them, is used to inform decisions affecting them or has them as its focus.
The current request is for information about KPI’s related to bonus payments based on employees’ personal performance.
Guidance on what is personal data states that if information ‘relates to’ an ‘identifiable individual’ it is ‘personal data’ regulated by the DPA. The information in this request doesn’t directly identify individuals. However, because the name of an individual is not known, it does not mean that an individual cannot be identified. The question faced by the Department in responding to Freedom of Information requests, is whether, in disclosing information that does not directly identify individuals, they are nevertheless disclosing personal data if there is a reasonable chance that those who may receive the data will be able to identify individuals. In assessing the situation, the Department has looked at what means are available to identify an individual from the information requested and the extent to which such means are readily available. In this case as the KPI’s requested apply to specific roles, in which the individuals would be easily identifiable to any member of the public. In considering identifiability the Department has taking the position that this is much broader than looking purely at the means reasonably likely to be used by the ordinary individual in the street, but also the means that are likely to be used by a determined person with a particular reason to want to identify individuals. The Department is a reasonably small Department with a limited number of management positions and as such it would be reasonably easy to link an individual to the KPI information requested. As those eligible for a bonus payment, will receive that payment based on both their individual performance and that of delivery of Departmental targets through the reporting year. This performance is assessed through an annual Performance Development Programme.
The Department therefore is satisfied that this information both relates to and identifies individuals. This information therefore falls within the definition of ‘personal data’ in Article 4 of the applied GDPR. This does not automatically exclude it from disclosure under FOIA. The second element of the test is to determine whether disclosure would contravene any of the data protection principles, with the most relevant data protection principle in this case is principle (a). Article 5(1)(a) of the applied GDPR states that:- “Personal data shall be processed lawfully, fairly and in a transparent manner in relation to the data subject”. In the case of a FOIA request, the personal data is processed when it is disclosed in response to the request. This means that the information can only be disclosed if to do so would be lawful (i.e. it would meet one of the bases of lawful processing listed in Article 6(1) of the applied GDPR as well as being generally lawful), be fair, and be 5 | P a g e
transparent. Also, if the requested data is special category data, in order for disclosure to be lawful and compliant with principle (a), it also requires an Article 9 condition for processing, however the Department does not consider this information to fall within the special category data definition.

Lawful processing: Article 6(1)(f) of the applied GDPR Article 6(1) of the applied GDPR specifies the requirements for lawful processing by providing that “processing shall be lawful” only if and to the extent that at least one of the lawful bases for processing listed in the Article applies, in this case the Department considers that the lawful basis most applicable is basis (f) which states:- “processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child”. In considering the application of Article 6(1)(f) of the GDPR in the context of a request for information under FOIA, the Department has applied the following three-part test:- a. Legitimate interest test: Whether a legitimate interest is being pursued in the request for information; b. Necessity test: Whether disclosure of the information is necessary to meet the legitimate interest in question; c. Balancing test: Whether the above interests override the legitimate interest(s) or fundamental rights and freedoms of the data subject. The Department considers that the test of “necessity” under stage (ii) must be met before the balancing test under stage (iii) is applied.

Legitimate interests: In considering any legitimate interest(s) in the disclosure of the requested information under FOIA, the Department recognises that such interest(s) can include broad general principles of accountability and transparency for their own sakes, as well as case- specific interests. Legitimate interests may range widely. They can be the requester’s own interests or the interests of third parties, and commercial interests as well as wider societal benefits. They may be compelling or trivial, but trivial interests may be more easily overridden in the balancing test. The Department understands that the requestor is interested in in the performance related bonus payments paid to employees, the Department considers there is a legitimate interest in how a public body distributes bonus payments. In recognising this, the Department has then gone on to consider whether disclosure is necessary in order to meet the legitimate interest. ‘Necessary’ means more than desirable but less than indispensable or absolute necessity. Therefore, the test is one of reasonable necessity and involves consideration of alternative measures which may make disclosure of the requested information 6 | P a g e
unnecessary. Disclosure under FOIA must therefore be the least intrusive means of achieving the legitimate aim in question. The requested information linked with other information or knowledge, such as information online from other FOIA requests and generally available information published by the Department and the Department considers that the disclosure of the bonus related KPI information and the publicly accessible information, would make it possible for individuals identity to be deduced. With the release of the requested information, it would be possible to view the bonus payment and therefore make a reasonable assessment of the performance of the individual, which is clearly very personal information that is not made publicly available. This assessment of performance could be made without any detailed ‘insider’ knowledge of the PSC performance management scheme. If the requestors legitimate interest is in knowing how much money the Department spends on rewarding its senior staff, then in considering necessity, the issue is whether that objective can be achieved by disclosing information that would not allow the bonus paid to individual post holders, which the Department is doing.
Therefore, the Department considers that disclosure in the detail requested is not necessary to meet the requestor’s legitimate interest. The Department believes that the information provided in this request would satisfy the legitimate interest in how a public body distributes bonus payments.
As the Department has decided in this case that disclosure is not necessary to meet the legitimate interest in disclosure, it has not conducted the balancing test. As disclosure is not necessary, there is no lawful basis for this processing and it is unlawful. It therefore does not meet the requirements of principle (a). Given the Department’s conclusion that disclosure would be unlawful, the Department considers that it does not need to separately consider whether disclosure would be fair

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