Employment Tribunal and Employment Appeal Tribunal: FOI release

Information requested

All recorded information, from 8 December 2021 until the date of this request, held which sets out the current position in respect of the project to incorporate the Employment Tribunal and Employment Appeal Tribunal into the Scottish Tribunals following the power to do so being granted in the Scotland Act 2016, to include (i) correspondence with the SCTS, Scottish judiciary (including the Lord President's Office and the President of the Scottish Tribunals), Ministry of Justice, HMCTS, the English and Welsh judiciary (including their offices), Faculty of Advocates and Law Society of Scotland, and (ii) briefings provided to Scottish Ministers and Junior Scottish Ministers.

Response

Date
13.12.2021	Email exchange between Scottish Government and Ministry of Justice
20.12.2021	Email exchange between Scottish Government and Judicial Office
22.12.2021	Internal Scottish Government email exchange
18.01.2022	Internal Scottish Government email exchange
24.01.2022	Internal Scottish Government email exchange seeking views on draft paper
24.01.2022	Internal Scottish Government email exchange re draft submission 18 January 2022 @15:53; 24 January 2022 @ 07:17
18.02.2022	Email exchange between Scottish Government and UK Government seeking an update
23.02.2022	Internal Scottish Government email exchange
05.04.2022	Email chain – Scottish Government and SCTS – subject line: Devolution of Tribunals Cost Recovery Agreement
18.05.2022	Internal email chain re progressing no detriment submission
20.07.2022	Email exchange between Scottish Government and UK Government seeking an update
05.08.2022	Internal Scottish Government email chain 5 August 2022 @08:39 20 July 2022 @ 08:49 7 July @ 18:16 4 July @ 11:39 30 June @ 10:06
02.08.2022	Email exchange between Scottish Government and UK Government 2 August 2022 21 July 2022 @ 10:40 21 July 2022 @ 08:14 20 July 2022 @ 17:51 11 July 2022 @ 11:40
20.12.2022	Submission to Minister – briefing on tribunals
09.01.2023	Email exchange between Scottish Government and UK Government seeking an update
01.03.2023	Email exchange with Scottish Government 1 March 2023 28 February 2023 27 February 2023
March 2023	Tribunals Policy Update
11.04.2023	Internal Scottish Government email chain
27.04.2023	Internal email Scottish Government
April 2023	Ministerial briefing on Tribunals
03.05.2023	Internal Scottish Government email exchange Minutes of Judicial Working Group meeting on 21 July 2021
17.12.2021	Labour Market Strategy Core Brief – Employment Tribunals

While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because exemptions under sections 29(1)(a) (formulation or development of government policy), 30(b)(i) (free and frank provision of advice), 30(b)(ii) (free and frank exchange of views for the purposes of deliberation), and 38(1)(b) (personal information of a third party) of FOISA apply to that information. The reasons why those exemptions apply are explained below.

REASONS FOR NOT PROVIDING INFORMATION

Exemptions under sections 29(1)(a), 30(b)(i) and 30(b)(ii) apply to some of the information you have requested. This means that some of the information requested:

• Relates to the formulation or development of Scottish Government policy; or
• would, or would be likely, to inhibit substantially the free and frank provision of advice and exchange of views for the purposes of deliberation.

The policy in relation to the devolution of the employment tribunal and employment appeal tribunal is still being developed and discussions are ongoing between the Scottish and UK Governments to agree how the transfer should operate. Discussions are also taking place with the Judicial Working Group. The above exemptions are subject to the 'public interest test'. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We recognise that there is a public interest in disclosing information as part of open, transparent and accountable government. However, there is a greater public interest in allowing administrations, Ministers and officials a private space within which to communicate. Disclosure is likely to hinder the development of policy and undermine the full and frank discussion of issues, which will in turn undermine the decision making process, which would not be in the public interest. Further, it would be inappropriate to disclose information about the detail of this project in circumstances where the policy is still being formulated and is under discussion' officials are still in discussion with officials from the UK Government; this information has not yet been shared with the tribunals judiciary; some of the policy relates to terms and conditions of employment which are still being discussed between officials.

Additionally, an exemption under section 38(1)(b) of FOISA (personal information) applies to some of the information requested because it is personal data of a third party, i.e. names/contact details of individuals, and disclosing it would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation and section 34(1) of the Data Protection Act 2018. This exemption is not subject to the 'public interest test' so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exemption.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses.