Tuesday, 14 June 2022 – I’ll be back
Laing O’Rourke told on me. Via their planning agent, Gerald Eve, they have forwarded our email conversation to their Planning Officer at the council to complain about me and ask her to intervene.
What their complaint might be, I can’t imagine. I am struggling to get into their headspace and think like them. Why would they risk their planning permission and billions of pounds of investment for arguing about the employment and skills contributions, especially when they pay a dedicated Rhino to manage it? They can’t possibly think that data protection is really an issue, can they? Even if they did, these people break legislative rules all over the place; 2% of employees in the construction industry are from an ethnic minority/non-European background which either says something about the capability of people based on their ethnicity alone or something about leading employers in the industrys’ adherence to equalities legislation. They don’t care about such legal matters. And the “Legal Counsel’s” advice didn’t make any sense (see I Didn’t Ask You to Break the Law).
I don’t think I’m going to find out what exactly the complaint is because the agent’s email yesterday starts off with “as discussed” and I don’t know what was discussed outside of this email string:
“[Planning Officer]
“As discussed I’m forwarding a chain of emails between LOR [Laing O’Rourke] and Paul regarding the reporting of employment in relation to the Section 106 obligations.
“Many thanks
“Best regards
“[Laing O’Rourke’s Planning Agent]”
On reviewing the email string, today the Planning Officer forwarded it to me saying:
“Hi Paul,
“Just wanted to give you a heads up that LOR asked me to look into this. Reading through the emails, it looks like this is all in hand and there’s no reason for me to be involved. Are you happy for me to go back to Gerald Eve advising that you’ve sought legal advice on your position and have provided a way forward?
“Thanks
“[Planning Officer]”
So the Planning Officer sees no problem with my responses. There’s a small part of me that’s disappointed because, if she did, she could explain to me what LO’R’s complaint is and why they are correct to be concerned. That Planning confirms that they aren’t right just makes it even more curious why LO’R is complaining. From a commercial point-of-view, it makes no sense; just make the contributions of jobs and training!
So, if it’s not greed motivating this complaint, then is it malicious obstinance directed at me? I doubt I warrant such strong and costly emotions. So, the motivation for their anti-employment-and-skills campaign is not righteousness, greed or spite. It could be racism fuelling a refusal to engage and train new people into the construction labour market despite it currently being in crisis after Brexit and Covid. Perhaps that is a small part of it, but it feels more personal because, recently, the Rhino has reverted to simply trolling me and stopped making any attempt to make any sense. She just keeps emailing me without any prompting from me, making the same dumb points over and over again despite my having laboriously and dutifully addressed each one previously. For example, below is the email string the agent sent to the Planning Officer. On 28 April, the Rhino emailed me and my manager:
“Hi Paul/[my line manager],
“Based on recent conversations, Future Olympia and Laing O’Rourke would like to invite LBHF Section 106 representatives to Olympia to see the project, discuss progress and bottom out challenges and come up with solutions.
“Please let me know if you are available in the afternoon of the 22nd June or 29th June.
“Thanks,
“[Rhino]”
What does that all mean? Our “recent conversations” were, if you don’t report who our local residents are that you claim you trained and employed, then I can’t verify them and can’t discharge these obligations. I’ve said this is not a breach of data protection legislation, it is specified as a requirement in the contract and I have taken legal advice from the council’s Legal service who have confirmed this. This planning obligation is no longer negotiable since the S106 contract has been agreed and sealed and, more importantly, development is well under way. LO’R’s Legal Counsel sent me his concerns relating to data protection to which I replied we weren’t asking for any of the data relating to the concerns he raised. I said there is no point discussing employment and skills delivery with me if they don’t then report outcomes to me so that I can discharge these obligations. And I said that it is reasonable to include pay rates in job ads and it is not really a job ad otherwise, especially if no-one then applies for it because it doesn’t say how much the job is paying.
And, here we are, I being invited to “discuss progress” that is of no interest to the council if they don’t report outcomes, and “bottom out challenges and come up with solutions.” I have never really understood what the action “bottom out” means but I’ve provided a solution already: fill in the employment and skills report or tell me why it is problematic to do so.
But it is hard to articulate why it is problematic in terms of data protection if it is not, and their attempt to bedazzle me with reams of legislation didn’t work (mostly because I can read which is what may have surprised them when dealing with a council officer).
And this time it is not just I that is being addressed, it is now slash my line manager. I assume this is another gambit. Hoping that I have gone rogue, making my manager aware of my rejection of their demands to actually make S106 contributions will prompt action by him to overrule me. Alas, he saw no reason to do so. So I replied with a simple response on 30 April:
“Hi [Rhino],
“Could we please resolve the reporting issue first?”
She replied 3 May:
“Hi Paul,
“Hope you had a nice bank holiday weekend. The purpose of the meeting is to also discuss challenges, encompassing reporting.
“The issue here is that it has been requested that we provide quarterly reports that contain certain identifiable personal data (including ‘special category’ and equality data). We queried that request because of the potential data protection impact and were told that we had already agreed to it via the s106 Agreement. We then looked at the Agreement and could find no such obligation. We provided evidence with extractions from the s106 Agreement.
“Perhaps it would be useful for you to review the Agreement and explain how full names and full postcodes are obligatory during the meeting so that both Laing O’Rourke and Future Olympia are aware.”
I know what your issue is, you already told me. And I have responded many times and addressed each of your ill-thought through points. I did not ask for “special category” and equality data. I’ve already said that and you didn’t respond. And I have already referred you to the paragraphs in the contract where we have agreed you report identifiable data as opposed to the extracts you provided that don’t ask for it and don’t relate to this point and that I have taken advice from my Legal Service that the contract does say this and that I can’t take your Legal Counsel’s counsel and no, your legal counsel can’t take legal counsel from our legal counsel so that your legal counsel can use it to oppose our legal counsel. That plotline wouldn’t even hold up in a 1990s Jim Carrey film.
Liar Liar, 1997
Reede: “Your
honor, I object!
Judge: “And
why is that, Mr Reede?
Reede: “It’s
devastating to my case!
Judge: “Overruled.”
I have already explained why names and full
postcodes are needed; it is because I need evidence that I can verify contributions
made or else, without evidence, I cannot satisfy myself they have been and, as
S106 Officer, discharge your S106 obligations from your planning
permission. This is in your interest! If a company as big as LO’R and with all its
resources cannot understand a contract without my help, then God help you. Obviously they are feigning ignorance and
just want to challenge me with me physically present which sounds very ominous
for me. But being invited to stand in
your witness box to be cross-examined by your lawyers is not going to change the
facts nor that I have any authority to accept any other interpretation of either
the council’s signed and sealed contract or national planning policy, so it
doesn’t matter if you break me down (although I am so tempted to attend this
showcase hearing just so as to better understand what their thinking is).
So, once again, I replied dutifully to each point pointing out that I have already dutifully replied to each of these same points before and, once again, I couldn’t be bothered to discuss my bank holiday weekend (May Bank Holiday) with her:
“Hi [Rhino],
“As we’ve already discussed, the council hasn’t asked LOR to submit special category and equality data. To confirm, I had already agreed with your predecessor, and since relayed this agreement to you, that you don’t have to report data on the ethnicity of local residents employed on the basis that LOR is not interested in ethnic equality in its staffing and therefore doesn’t record it. Separately, and this also relates to ethnicity, there are no specific targets in the S106 agreement relating to employment based on gender, age and whether or not a resident is an ex-offender and we agreed this doesn’t need to be reported.
“You (or your legal counsel) have not otherwise given a reason why providing identifiable data is problematic. Conversely, I have explained why we need it; we have a statutory duty to verify evidence that S106 contributions have been made contributing to the mitigation allowing the development, which wouldn’t have been allowed otherwise, have been discharged. I understand that our residents would need to consent to their names, postcodes, jobs and training to be shared but we would expect you to gain this consent given that you have agreed in the S106 agreement to report this.
“These reasons relate to the specific definitions on page 64: Local Residents, evidence of which I must verify.
“And the S106 agreement does ask for this. For example, in Schedule 9, in paragraphs 2.6 and 3.2 you have agreed “…to provide the Council with such details and such evidence as the Council may reasonably require…” It goes on to give examples such as the first part of the postcode but doesn’t exclude other reasonable requirements and I have provided these reasons.
“The Economic Development Codes go into further detail on what has been agreed to be reported. The definition on page 60 describes the Economic Development Codes as “…the codes prepared and published by the Council from time to time to assist the Owner with preparation of the JETS [a previous acronym for the Employment and Skills Plan]…”. I attach here the current Codes relating to Employment and Skills. Paragraph 9.1 requires providing first and family name and home postcode of local residents employed in jobs, apprenticeships and other training.
“These requirements are needed for the local planning authority to meet its statutory requirements to verify the required contributions and, as such, it is not in my purview to discuss and agree an alternative approach, at least insomuch as I am not able to verify the contributions otherwise.”
Surely I can’t say any more? And I appreciate that LO’R can have their own interpretation of the contract and they are free to challenge it in a tribunal or court and do not have to agree with me. But there can’t be anything more to discuss with me and I have remained, for good or bad, completely intransigent and shown no signs that the council might soften on this and they can’t possibly think that I, an Economic Development Officer, would attend in person to be cross-examined on legal planning matters. She replied 30 May:
“Hi Paul/ [my line manager],
“Hope you are well and are looking forward to the bank holiday weekend. I am writing to detail why we would like to meet in person. As we want to discuss, and hopefully resolve, the S106 quarterly reporting challenge.
“I have nonetheless set out some commentary and responses to your most recent email. I apologise in advance for the length of the email but there is a lot of ground to cover.
“S106 Agreement and the obligation to provide quarterly reports
“A copy of the final S106 Agreement is attached. You will see that the obligation to provide quarterly reports is set out at paragraph 5.1 of Schedule 9 on page 76. I have included a screen shot below for your ease of reference:
5. To submit to the council during the Construction Period (and, to the extent that the Owner elects to extend the JETS to cover the Olympia Way Development, the Olympia Way Construction Period) quarterly reports following approval of the JETS by the Council detailing the following:
(a) the number of those employed to carry out works in relation to the Development (and, to the extent that the Owner elects to extend the JETS to cover the Olympia Way Development, the Olympia Way Development) including the percentage that are Local Residents;
(b) the number of Apprentices employed to carry out works in relation to the Development (and, to the extent that the Owner elects to extend the JETS to cover the Olympia Way Development, the Olympia Way Development); and
(c) the outputs against the targets contained in the JETS.
“Nowhere does it say that we must provide identifiable personal
data. Instead, we have agreed to provide
details of the numbers of ‘Local Residents’ and ‘Apprentices’ (both defined
terms) employed to carry out works in relation to the Development.
“Local Residents are defined on page 66, as follows:
"…[a list of definitions from the contract that have no bearing on reporting and inexplicably (except to, perhaps bedazzle me) included here]…
“Again, nowhere within these definitions does it say that we must provide identifiable personal data.
“In your email below I note that you have referred to paragraphs 2.6 and 3.2 of Schedule 9 and the obligation “… to provide the Council with such details and such evidence as the Council may reasonably require…”. That obligation does not exist in relation to the quarterly reports as set out at paragraph 5.1 of Schedule 9 (see above). It instead applies to separate reports that we need to prepare and provide following Practical Completion and Occupation respectively, as follows:
2.6 Within five Working Days of Practical Completion of the Development or the Olympia Way Development (whichever is later), to provide the Council with such details and such evidence as the Council may reasonably require in relation to:
(a) the total number of Apprentices employed during the Construction Period... [illegible]...
3.2 Within 28 Working Days of Occupation of the Development or the Olympia Way Development (whichever is later) to provide the Council with such details and such evidence as the Council may reasonably require in relation to:
(a) the total number of Full Time Operational Phase Workers;
(b) dates of employment of the Full Time Operational Phase Workers and [...illegible]
“Further, any request that would cause us (or indeed the Council)
to breach data law would not meet the standard of reasonableness as set out in
both these clauses.
“The reason providing identifiable personal data is problematic
“We did touch on this in our earlier emails. However, apologies if our explanation was not clear.
“Assuming that we are both now aligned on the fact that we are not obliged to provide special category data, then the legal position is set out below (and you will see that we have included links to the Information Commissioner’s Office so that you can follow our logic and understanding).
“You have asked us to give you identifiable personal data. For the avoidance of any doubt, identifiable personal data is any information that relates to an identified or identifiable individual: ICO: what is personal data?. The giving of that data would amount to a processing activity for the purposes of data protection law: ICO: what is processing?.
“We must have a lawful valid basis in order to process personal data. These are set out in Article 6 of the UK GDPR: ICO: lawful basis for processing. We would struggle to rely on ‘Vital Interests’, ‘Public Task’ or ‘Contract’ because they would not appear to apply in the circumstances.
“We would also struggle to rely on ‘Consent’ owing to the standards and inherent difficulties associated with this condition. For example, in your email you have said that “we would expect you to gain… consent”. However, this ignores the fact that we may not be able to gain consent because it requires real choice and must be “unambiguous and involve a clear affirmative action (an opt-in)”. The ICO even acknowledges that consent is difficult and recommends that a different basis is relied upon: ICO: consent.
“That leaves us with ‘Legitimate Interests’. However, you cannot rely on legitimate interests if there is another reasonable and less intrusive way to achieve the same result: ICO: legitimate interests. That then brings us full circle to the fact that the S106 Agreement provides a less intrusive way to achieve the same result by not asking for identifiable personal data.
“We are not saying that we could never rely on Legitimate Interests. Indeed, one of the reasons for wanting to meet is so that we could explore this option in the context of your request and to answer the question of why the S106 Agreement contains no clear, explicit request for identifiable personal data if it is, as you say, a statutory requirement.
“The Economic Development Codes
“The document you attached to your email would appear to be an internal Council policy document/guidance note? I can see that it makes recommendations on what should be included in a S106 Agreement in terms of reporting. However, those recommendations have not been incorporated/adopted in the attached agreed S106 Agreement in a way that would oblige us to provide identifiable personal data.
“I cannot otherwise see how this code would bind or apply in the circumstances.
“Next steps
“We would very much like to meet and try to resolve the issues. Please respond with your availability on the afternoon of either 22nd or 29th June.”
Yeah, that one; the “ICO: legitimate
interests” one. I’ve already said you
can report a person’s identifiable data if you have that person’s permission
and have a good reason. Is she now
agreeing with me? The tone and context
of this email would suggest not, as well as the persistent invite to attend to
be flogged (I’m hoping figuratively but I’m starting to wonder).
We have made progress on the special category data thing as, after repeated assertions by me, she has now (conditionally) acknowledged that I am not asking for it. But that is as far as the progress goes. At this rate, Olympia will be built before we agree its S106 requirements. But, originally, this was the only reason LO’R gave for why reporting evidence was problematic. Now that I have convinced them that this argument was stupid, they cannot then start looking for other reasons why data protection legislation prohibits reporting. You cannot now say that the reason you thought then data protection prohibited you from reporting is not valid so let’s explore other reasons now that you didn’t think of then that means you had concerns then. This just proves LO’R is contriving reasons to not report and that we must just trust them that they have made their planning contributions. It is too late for that now; they’ve lost all credibility yet remain shameless about claiming other excuses that they hadn’t thought of then.
And the next bizarre excuses added to the mix are:
1. 1. They
must ask our residents for consent to share their data with unambiguous and clear
affirmative action. I can work out what this means but cannot work out what
the antonym might look like. Maybe throwing
a paper plane at them that, when unwrapped, says “catching this plane
demonstrates consent to share your personal details.” And
2. Asking our residents for consent is intrusive. Is that a thing? Have our residents said it is a thing?
So, just to rehash what my reply should be:
no, I do not want to discuss my bank holiday weekend (Platinum Jubilee Bank
Holiday) with you, no, I can’t change the agreement or planning requirements
and, no, I don’t want to attend on the 22nd or 29th to be
flogged. She has also pointed out in the
contract that it explicitly requires LO’R to report specific identifiable data
within five days of the practical completion of construction. My actual reply was:
“Hi [Rhino],
“Can I ask, what distinction are you making between reporting identifiable data after practical completion and during construction in terms of data protection? Are you acknowledging here that you will be reporting this after practical completion?
“I don’t understand the distinction you’re making between consent and real choice and must be “unambiguous and involve a clear affirmative action (an opt-in)”. I agree; any consent should be active and unambiguous. I would go further and encourage you to inform our residents that they are being trained and employed only because it as a part of a stipulation and programme by the council and this is why consent is being sought. That our residents are employed incidentally and they just happen to have a local postcode is not in the spirit of the S106 agreement and not in the agreed employment and skills plan. However, you can claim these outcomes too should I be able to verify them (that is, they consent to having details of their employment shared).
“I already addressed the points your legal counsel sent me saying that his points didn’t relate to what we’re asking for in the Employment & Skills reporting template and what I have since agreed with/conceded to LO’R. Otherwise, you’ve not given a reason why reporting identifiable data is problematic as well as seemingly conceding that it isn’t problematic after practical completion. There is good reason and we agree there should be consent.
“Whether reporting outcomes is intrusive to our residents is irrelevant if the purpose of the exercise is that the local planning authority should verify evidence of contributions being made and discharged. However, can I ask, have the local residents you are training and offering jobs to as part of the Employment and Skills Plan we jointly designed complained about the intrusiveness of having to consent to you sharing their data of their participation on this council programme with the council?
“Otherwise, as I’ve said in previous emails, I have confirmation from our Legal team that the contract does ask for identifiable data, I understand that the council does not intend to renegotiate the S106 agreement nor do I think it is appropriate that an Economic Development officer attends to explain the legal interpretation of a legal contract to your legal service. However, I am happy to meet to discuss the delivery of the employment and skills plan should I be able to verify outcomes from it. I am bound to take advice from the council’s Legal service rather than yours and, therefore, it’s not really relevant to negotiate interpretations with me. I’m just notifying you of the council’s interpretations on which I have taken advice from our Legal team.
“Can I take this opportunity to remind you there is also a requirement to advertise jobs with WorkZone which, in our opinion, hasn’t reasonably been fulfilled.”
Ok, surely that bluntness puts an end to
this discussion!
Or maybe not. On the 9 June she replied:
“Hi Paul,
“As mentioned, I’m delivering engagement to NEETs [young people Not in Employment, Education or Training] over the next few weeks so am away from my laptop. I did however want to check if yourself or a representative from your legal team would like to discuss data sharing on the 29th as we have it as a placeholder for Laing O'Rourke and Future Olympia.
“Please confirm by EOP tomorrow.”
OMG! No I don’t! And the council’s Legal team is not there to give you legal counsel. Get your own legal team! I didn’t reply by the End Of Playtime. And, again on 13 May:
“Good Morning Paul,
“Am I able to get a response about the meeting on the 29th June this morning please?”
I don’t think Sarah Connor had this much trouble from tenacious stalkers. It can’t be reasoned with. It doesn’t feel pity, or remorse, or fear, and it absolutely will not stop, ever, until you are dead!
Just to ensure there can be no complaint from the planning applicant, I replied to be exhaustive and exhausted:
“Hi [Rhino],
“I understand I’ve already answered this. I have shared the reporting process with you and this is not something we are otherwise in a position to discuss.”
Not included in the email string from the planning agent was a reply to this from the Rhino yesterday:
“Paul,
“Thank you for your response. I have notified all parties that the face to face meeting is cancelled. Would you still like to meet to discuss the delivery of the employment and skills plan?”
She has taken “thick-skinned” to another level. I replied:
“Hi [Rhino],
"That would be good but, as I previously said, we can’t claim any of the activities if no evidence of them [is reported], so this needs to be resolved first.”
In a tangential email string not shared with the Planning Officer, the Rhino is also arguing that it is reasonable to post an entry-level job ad on the council’s job board (WorkZone) without disclosing the pay rate while simultaneously complaining to me that she has had no applicants despite me previously warning her that if she doesn’t advertise the pay rate she probably won’t get any applicants and, therefore, it is not a reasonable attempt to advertise the job opportunities to our residents. On 4 June she emailed me:
“Paul
“I hope you had a nice bank holiday.
“…
“I wanted to start a separate email chain to discuss WorkZone, following the comment: ‘Can I take this opportunity to remind you there is also a requirement to advertise jobs with WorkZone which, in our opinion, hasn’t reasonably been fulfilled.’,
“Please explain further as all positions for Olympia specifically are being shared to WorkZone. We have also shared all pre-employment programmes.”
We have been through this already:
it is not reasonable to expect applications to entry-level jobs where the pay
rate is not disclosed, nor ads for experienced construction staff where the
salary is neither disclosed or negotiable.
I replied:
“Hi [Rhino],
“We previously discussed including pay rates in job ads. You said then that this is something LO’R was unwilling to do?”
On 6 June she sent another rather aggressive, random email:
“Paul,
“It was requested that I share all activities to receive approval, however, I haven’t received a response for the attached.”
[Attached are email messages where she has been arranging various job ad campaigns variously called Construkt, Able Capable Employed (to “support London based residents with disabilities” with “placements”) and Work Experience.]
No it wasn’t. I did not request it and it is not in the S106 agreement. What is in the agreement is that we must agree an employment and skills plan which we have done already and none of these rather vague initiatives like Construkt are in there. Why is she saying this now? I suspect the ad campaigns have been spectacularly unsuccessful, especially if she did not advertise the pay rates, so she is now trying to include me to take some of the blame. But we already agreed to an employment and skills plan and I have no idea why she has diverged from it (not that it matters anyway if she doesn’t report the outcomes).
I didn’t reply but on 9 June she replied to my last email:
“Hi Paul,
“Salaries and pay rates are not displayed due to company policy, nonetheless, all of our job descriptions have been displayed on WorkZone’s website. As per the example attached, other organisations similarly do not display salaries and WorkZone display their positions.”
[Attached]
These
arguments are starting to get more desperate.
Lidl doesn’t have a planning agreement with the council and they are
more likely to get applicants anyway.
That is not to say that Lidl treats their Customer Assistants
particularly well, especially in regards to pay.
Just for the sake of variety, maybe I could try to be less officious with her. I am the S106 officer but I am also an Employment and Skills adviser. I replied:
“Hi [Rhino],
“We’re happy to work with you on this and Olympia is obviously a big development in the borough but, beyond what’s been agreed in the S106, I and [a WorkZone Employment and Skills Adviser] previously advised that you will struggle to get applicants and candidates for training programmes if you don’t advertise salaries, and that seems to be the case (whether or not Lidl is).
“Also, it’s not in our interest (in relation to the employment and skills programme we have at the council) if you don’t report our residents to us who were successful and we can’t claim them.
“You don’t need to confirm initiatives with us and we have agreed an Employment and Skills Plan and there’s nothing you have sent me that deviates from the plan so it’s all good.
“If you want to have a chat about how we can work together on this, I and WorkZone are happy to do this, but we do need to be able to claim the outcomes and I don’t think you’re reasonably going to get many applicants without advertising a salary (as well as promoting a potential career that goes with jobs and training).”
She didn’t respond to my trying to be conciliatory and focussing on the opportunities Olympia could offer. I don’t think it’s about this for Laing O’Rourke. I think it is about being bigger than the local planning authority and exerting their own authority on development in the UK. Government cannot force them to decide who to recruit. If they choose not to be inclusive and equitable and manage the capacity of the construction labour market to meet London’s homes-building needs, then that is their prerogative. They want to be apotheosised to Olympus; the authority that capitalism gives them that Olympia is theirs to do with what they will rather than it being part of the public realm. This is private sector exceptionalism begetting insularity. They intend to defy our authority in a show of strength and, in so doing, hunt down market interventionists and destroy the S106 Officer.
The next bank holiday weekend is now not due again until the end of August (Summer Bank Holiday) so I have a bit of respite until the beginning of September. Come with me if you want to live.
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