Staff mental health: FOI release

Information requested

1. How many mental health breaks/requests have (a) Scottish Government directorates and (b) Scottish Government executive non departmental public bodies (NDPBs) received in each of the last five years. Please break this information down by year and by directorate/ NDPB.
2. How many internal grievance cases are currently live within (a) Scottish Government directorates and (b) Scottish Government executive NDPBs. Please advise by directorates and NDPBs
3. How much money have (a) Scottish Government directorates and (b) Scottish Government executive NDPBs spent on the services of external law firms to deal with internal employment disputes/complaints in each of the last five financial years
4. How many non-disclosure agreements have been signed by employees broken down by (a) Scottish Government directorates and (b) Scottish Government executive non departmental public bodies (NDPBs) in the last five years. Please advise by directorates and NDPBs.

Response

In relation to Question 1, we are unable to provide the information requested. This is because the Scottish Government does not have a mental health breaks/requests policy or process. Therefore, we do not hold this information.

You will wish to be aware that the above information relates to the core Directorates of the Scottish Government – see Annex A. If you wish to obtain information for other areas, you will need to contact them directly.

For Question 2, as of 19 June 2023 we have 11 formal internal grievance cases that we consider are live within Scottish Government core directorates.

DG	Number
Communities	1
Corporate	2
Economy	2
Health and Social Care	1
Net Zero	1
Strategy and External Affairs	1
Accountant in Bankruptcy	1
National Records Scotland	2

Again, you will wish to be aware that this information relates to the core Directorates of the Scottish Government – see Annex A. If you wish to obtain information for other areas, you will need to contact them directly.

In relation to Question 3, we are unable to provide the information requested.

While our aim is to provide information whenever possible, in this instance the costs of locating, retrieving and providing the information requested would exceed the upper cost limit of £600. To enable us to identify the information that you have requested, we would need to review a large number of electronic records to establish which cases fell within the scope of your request. Under section 12 of FOISA public authorities are not required to comply with a request for information if the authority estimates that the cost of complying would exceed the upper cost limit, which is currently set at £600 by Regulations made under section 12.

For Question 4, you have asked for information about non-disclosure agreements signed by employees.I have interpreted your request to mean non-disclosure agreements relating to employment cases. If that interpretation is incorrect, please let me know.

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 an exemption under section 38(1)(b) (personal information) of FOISA applies to that information. The reasons why that exemption applies are explained below.

In addition, in this instance the Scottish Government does not have some of the information you have requested. The reasons why are explained below.

While there is no legal definition of an NDA, ACAS have published guidance on their use in an employment context which states that they may be used in a settlement agreement, for example, where an employer might use an NDA to stop an employee or worker sharing information. In Scotland, guidance in relation to settlement agreements, the scrutiny of cases and the use of confidentiality clauses (NDAs) in settlements is provided in the Scottish Public Finance Manual. This provides that the employer or employee (or their legal representative on their behalf) may request that a confidentiality clause is included (as the disclosure of the terms and circumstances of the agreement could impact negatively on their privacy and employability). As such, we have considered, in line with our Section 15 duty under FOISA to provide advice and assistance to the requestor, that you may consider that this information falls within the scope of your request and so it is included below.

Data in relation to settlement and the number of confidentiality clauses in Scottish Government and Public Bodies, NHS Scotland and Scottish Funding Council overseen bodies is held from 2014 and, since then, has been provided to parliament annually – see links to previous reports from 2014 and from 2020.

Data in relation to settlement and the number of confidentiality clauses in Scottish Government and Public Bodies, NHS Scotland and Scottish Funding Council overseen bodies for the last 5 years is contained in Table A.

Table A SG and Public Bodies data

CC = confidentiality clause.

Year	SG and Public Bodies	SG and Public Bodies CC
2021/2022	20	13
2020/2021	26	12
2019/2020	24	16
2018/2019	24	16
2017/2018	39	28

Your request asks for information broken down by Scottish Government directorate and Scottish Government executive non departmental public bodies (NDPBs). We are unable to provide this information. An exemption under section(s) s.38(1) of FOISA applies to some of the information you have requested. This exemption applies to some of the information requested because it is personal data of a third party and disclosing it could lead to their identification and 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.

In presenting information to parliament annually Scottish Government is mindful of the need to respect the confidentiality of Settlement Agreements and the general entitlement of individuals to privacy under data protection legislation so an anonymised breakdown of each of the agreements and the associated costs is thus provided to parliament.

Your request asks for information for the last 5 years. The information is collated after the end of the current financial year as part of the data collection / reconciliation exercise for production of the annual report which will not commence until April. The data for 2022/2023 will be published in the next annual report.

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.

Annex A - 202300358887

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