Widower continues tribunal claim against FOI Commissioner

The Herald Scotland

2 days ago

Just weeks later, she was diagnosed with terminal cancer. She died in February 2025.
One of her dying wishes was that her husband, Ian, push on with the case.
The Commissioner's office is defending the claim.
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The tribunal claim also raises wider concerns about who watches the watchdogs.
The Commissioner is responsible for the "enforcement and promotion of Scotland's freedom of information laws", including "handling appeals about the way in which Scottish public authorities respond to information requests".
Given the need to avoid political interference, the job comes with a certain degree of independence. But that means the postholder can only be removed by a supermajority in the Scottish Parliament.
According to the claim, Helen enjoyed a good working relationship with the previous Commissioner, Daren Fitzhenry, but that changed after the appointment of David Hamilton, a former chair of the Scottish Police Federation, in October 2023.
The tribunal papers submitted by Helen state that the relationship deteriorated rapidly.
They go on to allege that at a January 2024 meeting, Mr Hamilton proposed an internal award called 'Margaret the Fox', named after a recently retired colleague, which Helen and two female colleagues found offensive due to 'the use of the word fox [having] negative connotations when referring to women".
The Commissioner, in his legal defence, says the award was a tribute to a colleague's fondness for foxes and had been welcomed by the person in question.
The claim also says she raised broader concerns about the 'introduction of a police culture', including staff feeling pressured to laugh at the Commissioner's jokes. The defence disputes that such concerns were raised in the way described.
During a return-to-work call after a period of absence, the claim alleges Helen was told she was "being precious", "obsessing", and that "people do not like her". The Commissioner denies saying that people disliked her.
In meetings, she was reportedly told she was "not agile", lacked a "can-do attitude", and had "failed in her job". One meeting allegedly ended with her being told to "be quiet" after raising financial concerns – an incident contested in the Commissioner's defence.
On March 14, she emailed Mr Hamilton, stating: "All members of staff, including myself, should be treated with consideration, dignity and respect while at work. Your comments about me are incorrect and are having a detrimental effect on me.
"You are not treating me fairly, with dignity or respect. I feel intimidated by you and discriminated against. The way you treat me, in person, in meetings and in writing, is unacceptable and also makes me feel belittled, anxious and not valued."
She lodged a formal grievance five days later, citing "unreasonable treatment" and alleging discrimination, harassment and intimidation.
She was then absent due to ill health.
Helen submitted the claim in December. She died in February. (Image: agency) According to her claim, Mr Hamilton initially responded by saying a "bespoke arrangement" would be created to ensure an independent process was in place, but only upon her return to work.
In March, he assigned another senior official, line-managed by him, to act as her main contact – despite Helen requesting someone else. The Commissioner disputes that the arrangements were inappropriate and later agreed to appoint an external independent investigator, contingent on confirmation of Helen's fitness to engage.
In June, he reiterated that he would proceed with the grievance only once she confirmed she was medically fit. He added he had sought legal advice.
Helen responded that her ill health had been caused by his conduct and she was willing and able to participate in the process.
The claim alleges that on July 19, Mr Hamilton phoned Helen's trade union representative to suggest she was ignoring emails – something her tribunal documents say was untrue. The Commissioner says he simply asked for emails to be acknowledged.
That same day, she was told her laptop and phone would be collected due to cyber-security protocols applying to staff absent for more than four months.
Her legal team say she was also blocked from using pre-approved annual leave to extend her period of full pay, with leave cancelled three times in April, May and August. The Commissioner says she was paid in lieu and suffered no loss.
In a letter dated August 13, Mr Hamilton wrote that "on conclusion of the internal grievance process, it is likely I will be investigating performance and disciplinary procedures". The letter provided no details of the alleged issues. Tribunal documents say Helen found this particularly upsetting and reiterated her request for the grievance to be investigated without delay.
By October 21, Helen had still not been contacted by the promised investigator. She emailed Mr Hamilton again to say the delay was harming her health and that she felt she was being punished for lodging a grievance.
He replied that same day, saying he had just returned to work and would respond after catching up.
Helen resigned three days later.
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In her resignation letter, she wrote: "It is now more than seven months since I submitted a formal grievance against you and you have refused to allow any of my grievances to be dealt with."
She said his behaviour during her absence and while working had caused "enormous damage" to her health and left her with "no alternative but to resign".
There is no suggestion of a link between the treatment Helen received and her cancer diagnosis.
Before her resignation, she is understood to have been offered a financial settlement by the Commissioner, but it was rejected.
Helen's lawyer, Tony McGrade, argues that the Commissioner's handling of the grievance process was "significantly below accepted standards".
He told The Herald: "This case highlights the real dangers in there being no procedure in place to allow grievances against officials such as the Scottish Information Commissioner to be independently investigated.
"This means that the person against whom an allegation of discrimination or unfair treatment is made decides whether that is investigated. This is simply wrong."
Under the Freedom of Information (Scotland) Act 2002, the Scottish Information Commissioner is a statutory officeholder appointed by the Scottish Parliament and operates independently of government.
Unlike most public sector roles, the Commissioner is not accountable to ministers or civil service structures, and complaints about their conduct are not subject to routine oversight.
Removal from office requires a formal resolution passed by two-thirds of MSPs – a deliberately high threshold designed to protect the role from political interference.
That resolution can be triggered if the Parliament is satisfied the Commissioner has breached the terms and conditions of office, or if it determines that it has lost confidence in the Commissioner's willingness, suitability or ability to do the job.
Helen's husband believes this has created an accountability gap, making it extremely difficult for staff to challenge the Commissioner's actions through normal employment procedures or for Parliament to intervene when serious concerns arise.
It is understood the matter has been raised informally with Alison Johnstone, the Presiding Officer of the Scottish Parliament, who confirmed the limited powers available to intervene in what is treated as an internal employment matter.
Those close to the case say the aim of the legal action is not financial compensation, but accountability – though Mr Hamilton strongly contests the allegations.
The Commissioner said it "fully intends to defend its position in the Employment Tribunal" but that it "would be entirely wrong to make any comment on the substance of the claim until the Tribunal has considered the full evidence and issued a judgment."
"The Commissioner will accordingly respect that process, being of the view that this is covered by the law relating to contempt of court, and will be making no comment until the appropriate time."