Information Commissioner orders EHRC to provide answers over Covid breach by former chief executive Rebecca Hilsenrath

Posted on May 19, 2025 by davidhencke

NEW: Since this post was published I have learned that Rebecca Hilsenrath has been awarded an honorary KC and been appointed a member of the Civil Justice Council, chaired by the Master of the Rolls,Sir Geoffrey Vos. She is responsible for advising the judiciary on the use of alternative dispute resolution, where disputes are settled outside the courts. Ironically this would include the demand from CEDAWinLAW to solve the dispute over compensation for 50swomen pensioners which ministers oppose. She was and still is chief executive of the Parliamentary Ombudsman’s Office when the former ombudsman ,Robert Behrens, recommended compensation for partial maladministration by the DWP. It would be curious to know what her position will be on this if this ever came up.

John Edwards, the Information commissioner, has ruled that the Equality and Human Rights Commission must answer what action it took when it was revealed that its former chief executive, breached Covid rules at the height of the pandemic by driving from north London to her holiday cottage in Wales for a family Christmas in 2020.

The decision is a partial victory for Mark Benny, a dogged campaigner, who sought answers to what action it took when it became publicly known through an article in The Times that she had driven hundreds of miles when there was a ban on any long distance travel as part of the national lockdown.

But the information commissioner has decided not to release a report of an EHRC investigation or correspondence from her because it goes into her private life and might cause unwanted distress.

Rebecca Hilsenrath’s Welsh holiday cottage

However his ruling is significant for a number of reasons. He has had to weigh up public interest in this case versus a person’s right to privacy. And he has come down very firmly that there is a public interest case about how senior public figures conducted themselves during the pandemic. He also ruled that public bodies cannot, as the EHRC did, impose a blanket ban under the privacy section of the Freedom of Information Act, to refuse to confirm or deny anything because it involves personal data.

This could have wider implications since public bodies use this technique where there are controversial appointments or resignations to refuse to provide information because itinvolves personal data

Rebecca Hilsenrath’s case was particularly controversial because she resigned her chief executive’s job at EHRC only to be parachuted into a top position at the Parliamentary Ombudsman’s Office where since became Interim Ombudsman and chief executive, an equivalent or even better status than she had at the EHRC.

Extraordinarily when Mark Benny pressed the Parliamentary Ombudsman’s Office on what they knew or whether they took into account of her Covid breach during her appointment, the office said it had lost the papers on her appointment process.

So now the EHRC will have to answer his questions within 30 days or as the Commissioner says in his report “failure to comply may result in the Commissioner making written certification of this fact to the High Court pursuant to section 54 of the Act and may be dealt with as a contempt of court.”
The questions he has asked include whether there was a proper investigation into the breach, whether it was completed and what was the outcome. He also wants to know whether she was suspended by the EHRC or put on gardening leave and whether she was dismissed or decided to resign.

All the public had at the time was a terse statement by the EHRC to the press. It said:

“The Equality and Human Rights Commission said they will consider whether further action against its chief executive is needed.
“She has apologised for this error of judgement,” said EHRC chair Baroness Kishwer Falkner.
“I will establish all the facts before deciding if any further action is
required.”

Nothing has been heard of this since and it is now known whether it came up again when she was interviewed to be Interim Ombudsman last year.

What the ruling by the Information Commissioner does is say that Mark Benney’s request was legitimate and it was necessary for the information to be released. But he thought this could be done through his questions and it was not a legitimate interest to release the full report because it contained details of her private life.

Interestingly he thought it might throw some more light on what happened at the Parliamentary Ombudsman’s Office. He said “he considers that disclosure of the requested
information would allow further scrutiny of that process.”

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Judge quashes £10,000 costs order against rail safety whistleblower

Posted on August 6, 2024 by davidhencke

One of Vossloh Cogifer UK Ltd biggest projects: Supplying 149 sets of points outside London Bridge Station Pic credit: Network Rail.

Nigel Midgley, a former employee with Vossloh Cognifer, a private contractor to Network Rail, who was dismissed after he reported rail safety issues to the Health and Safety Executive, today got a £10,000 costs order quashed by a judge at an Employment Appeal Tribunal.

VCUKL is a wholly owned subsidiary company of Vossloh Cogifer a French managed but German owned global company. VCUKL’s Managing Director is Mrs Wendy Anne Preston and its main customer is Network Rail.

The judge ruled that the UK based company had been wrong to with hold from an employment tribunal, part of a email sent by Edward Flanaghan, head of Gosschalks Solicitors in Hull, to Mr Midgley offering to settle the case without going to a tribunal.

Instead it left the first and last two paragraphs out of the letter, sending a redacted version to the tribunal omitting the offer but painting a nasty picture of Mr Midgeley as a failed probationary employee who was sacked but used whistleblowing complaints to explain his dismissal. It told the tribunal that these had no merit and Mr Midgley had no chance of winning his case.

Judge Martyn Barklem however ruled that the omission of the offer by the employer to settle the case changed the whole picture presented to the tribunal and would have not led to the award of costs. He also saw it as an attempt to stop a litigant in person, who was not a qualified lawyer, to abandon the case. He pointed out that no judge had decided that Mr Midgley did not have a case. The company also tried to argue that Mr Midgeley should not have disclosed the unredacted letter to the employment appeal tribunal because it was covered under legal privilege. This was rejected by the judge.

David Stephenson, Pic Credit: Doughty Chambers

Mr Midgley’s case was taken up by an advocate, David Stephenson from Doughty Chambers, whom the judge praised for his succinct presentation of the issues. The company did not employ a lawyer in person to present their case but gave a written submission. The judge revealed their non appearance was for commercial reasons as it would have cost them more than £10,000 to be represented. This highlights what is wrong with public authorities like the NHS and Sellafield which have access to unlimited sums of taxpayer’s money to pursue whistleblowers like cardiologist Usha Prasad and human resources consultant, Alison McDermott, through the tribunal system, while a commercial company would cut its losses.

More disturbing stuff about NDA’s

There is more disturbing stuff about the way lawyers from Gosschalks and the private rail company behaved in Mr Midgeley’s case. He was strongly supported by his wife, Keely Midgley, over his whistleblowing claims and treatment by the company. She sent a large volume of emails to directors of the company and posts were put up on Linked in. The company then threatened Mr Midgley with harassment proceedings unless it stopped.

But the most disturbing part of the proceedings was the COT3 agreement which the company wanted him to sign written up by their lawyers.

Among the provisions were: “The Claimant will not publish, cause, assist or knowingly permit to be published (including but not limited to by his wife) in any media whatsoever, any article or comment relating to his employment with the Respondent, or its termination, or the existence or terms of this agreement. The Claimant will not contact by any means any customer, supplier, employee, consultant, advisor or other organisation with which the Respondent has a professional relationship in respect of any matter whatsoever.”

It also banned him from approaching the Information Commissioner or making any data subject request. ” The Claimant will not make any further Data Subject Access Request under the General Data Protection Regulations ((EU) 2016/679) (GDPR) or the Data Protection Act 2018 or other legislation and agrees that any existing or ongoing such request should be treated as withdrawn. The Claimant will not make any complaint to the Information Commissioners Office in respect of Subject Access Requests and further waives any civil claim for damages in respect of breaches of data protection legislation.”

The proposed agreement led a firm of lawyers, Marjon Law, to disagree on Mr Midgley’s behalf.

“We would contend that Mr Midgley is entitled to use all documents that were read to or by the court, or referred to, at a hearing which has been held in public. To that end, we do not believe that the draft undertaking for him is reasonable or appropriate. In any event, Mr Midgley should be able to disclose documents from the Claim for the purpose of:
(a) reporting a suspected criminal offence to the police or any law enforcement agency or cooperating with the police or any law enforcement agency regarding a criminal investigation or prosecution;
(b) doing or saying anything that is required by HMRC or a regulator, ombudsman or supervisory authority;
(c) whether required to or not, making a disclosure to, or co-operating with any investigation by, HMRC or a regulator, ombudsman or supervisory authority regarding any misconduct, wrongdoing or serious breach of regulatory requirements (including giving evidence at ahearing);
(d) complying with an order from a court or tribunal to disclose or give evidence;
(e) disclosing information to HMRC for the purposes of establishing and paying (or recouping)
tax and National Insurance liabilities arising from his employment or its termination; or
(f) making any other disclosure as required by law.”

The company’s lawyer’s disagree and said this was only guidance and could be ignored.

If I take this with moves to silence whistleblowers at Sellafield through non disclosure agreements this suggests that lawyers seem to think they can force litigants in person to shut up about matters that affect public safety whether in the NHS, Sellafield or on Network Rail.