Statements to Parliament by Cabinet Secretary for Education, Shirley-Ann Sommerville 02/02/23: FOI release

Information requested

1a) was the Cabinet Secretary fully aware of the publicly stated breach of the ACAS code by the Chair of SLC (Paul Hutchinson) on the 23rd January prior to her response in parliament on the 2nd February?

b) is the Cabinet Secretary still ‘content’ that due process has been followed by the SLC Board in relation to the sacking of the Principal and Clerk to the Board in the light of the Chairman Paul Hutchinson statement to a full complement of college staff that the board had in fact breached the UK's statutory codes of practice in relation to employee disciplinary processes?

Please provide any related correspondence between SLC, SFC and the Cabinet Secretary that she relied upon in her response to parliament.

2. Please provide the written assurances provided by the SFC, referred to by the Cabinet Secretary, and relied upon by the Cabinet Secretary, that South Lanarkshire College’s own disciplinary process was applied in accordance with the ACAS code and in accordance with due process.

3. Please provide the written assurances provided by the SFC, that the SLC Disciplinary Hearing conducted on the 16th January, was in compliance with Section 12.5 of the College’s Disciplinary Procedure for both dismissed employees.

4. Given the Scottish Government’s ongoing oversight of the investigations and SLC Board decisions, can the SG confirm that it is ‘content’ that the Code of Good Governance for Scotland’s College’s and a Scottish College’s constitution takes precedence over UK employment law in ‘employment and HR matters’. Please provide the legal basis relied upon for the SG’s position.

5. Can the Scottish Government confirm that it is ‘content’ that other Scottish Colleges adopt the practice of ignoring the ACAS statutory codes of practice in relation to HR employment and HR matters? I.e that other college boards should be able to dismiss staff without adhering to their own HR policies and the ACAS Code?

6. Please confirm that the SG is advising no further action in response to the ‘failings’ of the former SLC Chair and salaried Board Member of the SFC given the findings of the investigations reputed to have cost in the region of £1M of public funds to date (and rising) – conducted with the full approval of the SFC and oversight of the Scottish Government.

Response

The answers to your questions are:

1(a)&(b):

a) The former Cabinet Secretary was aware of a statement issued to staff at the college to inform them of the outcome of the investigation.

b) The former Cabinet Secretary remains assured by the SFC that due process was followed, and full legal advice was sought and adhered to throughout the investigation by the college.

4,5,6:

Operational decisions, including HR matters, are for individual colleges, Scottish Government Ministers have no locus in staffing matters.

1(a)&(b), 2, 3:

Exemptions under section(s) of FOISA applies to all of the information you have requested:

s.30(b)(i) Free and frank provision of advice

s.30(b)(ii) Free and frank exchange of views

s.30(c) Otherwise prejudice effective conduct of public affairs

The exemptions recognise the need for Ministers to have a private space within which to seek advice and views from officials before reaching the settled public position which will be given in whatever lines to take are used. Disclosing the content of free and frank briefing material in relation to complex HR matters at South Lanarkshire College will substantially inhibit such briefing in the future, particularly because discussions relate to a sensitive issue.

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 some public interest in release because there is value in the public having access to advice/views on important discussions around public services. However, this is outweighed by the public interest in allowing officials and Ministers to exchange open advice/views without concern that this would be disclosed publicly and creating unrealistic expectations on policy.

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