Employment Tribunal and Employment Appeal Tribunal: FOI review

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

I have concluded that the original decision should be confirmed with modifications. I have reviewed where exemptions apply and remain satisfied why those exemptions apply to particular information namely sections s.29(1)(a) – formulation development of government policy, s.30(b)(ii) – free and frank exchange of views for the purposes of deliberation, and s.38(1)(b) – personal information of a third party.

I have noted your comments on redacted information and considered fully the Scottish Government’s obligations under the Freedom of Information (Scotland) Act 2022. I would assess in the original response, insufficient information on the reasoning for the application of appropriate exemptions was provided, therefore I would like to take the opportunity to provide these as part of a comprehensive review process.

Section 29(1)(a) – formulation or development of government policy

An exemption under section 29(1)(a) of FOISA (formulation or development of government policy) applies to some of the information requested because it relates to the formulation and development of the Scottish Government’s policy on the Employment Tribunal and Employment Appeal Tribunal.

This exemption is 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 have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, there is a greater public interest in high quality policy and decision-making, and in the properly considered implementation and development of policies and decisions. This means that Ministers and officials need to be able to consider all available options and to debate those rigorously, to fully understand their possible implications. Their candour in doing so will be affected by their assessment of whether the discussions on Employment Tribunals and Employment Appeal Tribunals will be disclosed in the near future, when it may undermine or constrain the Government’s view on that policy while it is still under discussion and development.

Section 30(b)(ii) – free and frank exchange of views for the purposes of deliberation

An exemption under section 30(b)(ii) of FOISA (free and frank exchange of views) applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank exchange of views for the purposes of deliberation. This exemption recognises the need for Ministers and officials to have a private space within which to discuss and explore options before the Scottish Government reaches a settled public view. Disclosing the content of free and frank discussions on Employment Tribunals and Appeal Tribunals will substantially inhibit such discussions in the future, particularly because these discussions are still ongoing and decisions have not been taken.

This exemption is 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 have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, there is a greater public interest in allowing Ministers and officials a private space within which to explore and refine the Government’s position on Employment Tribunals/Appeals, until the Government as a whole can adopt a policy approach that is sound and likely to be effective. This private thinking space is essential to enable all options to be properly considered, so that good decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers and officials, which in turn will undermine the quality of the decision making process, which would not be in the public interest

Paying particular attention to s.38(1)(b) – personal information of a third party – I note your dissatisfaction at the original response in relation to this exemption. I have noted your comments on redacted information and considered fully the Scottish Government’s obligations under the Freedom of Information (Scotland) Act 2002.I would assess in the original response there was insufficient information provided to you on the reasoning for the application of this exemption and set out further detail below.

Section 38(1)(b) – personal information

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 and contact details of individuals, and disclosing it would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation and in 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.

Some of the information redacted from the collated information in the original response is redacted because it does not fall within the scope of the request. Where ‘out of scope’ information is redacted, it should be made clear to the requesting party what information is out of scope. Having reviewed the disclosed information from the original response I am of the view that in the way the information was presented, it was not made clear to you what information is out of scope. For this reason, I would like to apologise; as I understand it, it was not possible for the conveyed document to be edited in this manner to make clear what information fell out of scope. I have subsequently reviewed all of the information that does not fall within the scope of the request and can confirm the decision to redact some of the information.

I also note your comments on the ‘over-redaction’ of material, with specific reference to s.38(1)(b) – personal information, including - as you rightfully queried - information such as email signatures. Having carried out a comprehensive review, I would assess that, on this occasion, some specific information that may have fallen outside of the exemptions was indeed redacted from the information you received in the original response. Again, I would like to take the opportunity to apologise. Subsequently, under the review process, I have thoroughly reviewed all the information – paying particular attention to the nuance between an exchange of views in communication, and what is deemed to fall ‘out of scope’; or indeed where specific exemptions apply. I attach a new, collated, response alongside this letter where you will be able to view where the exemptions s.29(1)(a), s.30(b)(ii), s.38(1)(b), and information ‘out of scope’ have been applied. I do hope you find this helpful.

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.

FOI - 202300359309 - Information release

File type

79 page PDF

File size

3.7 MB