Independent handling of complaints
Ms Dunlop recommended that formal complaints against a former Minister should be investigated and adjudicated independently. The Committee welcomed this recommendation and added that it believed an independent process for complaints against current Ministers should also be considered. The Committee suggested that something similar to the independent systems in place in the Scottish Parliament and the House of Commons might be considered.
Together with our recognised trade unions, we are developing a proposal for an external process, independent of the Scottish Government, for the investigation and adjudication of formal complaints about a Minister’s or former Minister’s behaviour. The proposal will be informed by external professional perspectives, including options for the appointment of an external provider.
The Scottish Government’s role as employer requires us to have a process in place which fulfils our obligations to our employees and also aligns with the (reserved) position of the civil service as set out in the Constitutional Reform and Governance Act 2010 and the Civil Service Management Code. Like the Scottish Parliament and the House of Commons, it will be important for us to consider our distinctive context in designing a new approach to independent investigation and adjudication.
In an independent investigation of a complaint, the Scottish Government would continue to be responsible to its employees for ensuring an effective investigation and for the manner in which it was conducted. In whichever way complaints are investigated, the Scottish Government has an ongoing obligation as an employer to ensure that all staff have access to an effective process to raise complaints about harassment by anyone, including Ministers and former Ministers.
As the employer, the Scottish Government would remain legally responsible for any decisions reached about an employee, even if these decisions had been passed to and made by a third party. Employer responsibilities cannot be delegated.
Ms Dunlop recommended that an initial assessment or screening process should be undertaken to decide whether a complaint by a civil servant against a Minister should be handled under the Ministerial Code or follow the process of ‘Fairness at Work’, and that this screening process should be confined to an initial report of the complaint with a brief account of facts alleged by each person, noting evidence potentially available, any areas of agreement on facts, and what resolution the complainer is seeking, but not offering any views as to credibility or reliability. Ms Dunlop also commented that the person conducting the screening process should have access to legal advice.
The proposal for external independent handling of formal complaints about a Minister’s or former Minister’s behaviour will consider the option of an initial assessment. Any initial screening would need careful handling so as not to create unnecessary delay, deny access by either party to a full investigation, or lead to conclusions being reached on the basis of partial facts.
The Committee called for clarity on what information will be shared and when for the complainers and the person against whom a complaint is made, and set out their belief that the information available to both the complainer and the subject of a complaint should contain a comparable level of detail. The Committee expressed a view that a key principle of any complaints process is that the complainer and the person being complained about should each receive all the necessary information to set out their accounts of events, and should be provided with the same opportunity to comment on the information being provided to the person deciding on the complaint. The proposal for external, independent handling will include this as the default position, with scope to make judgements informed by external professional perspectives should the risks of the case require caution.
The Committee highlighted that it can be very difficult for people to come forward with complaints and called for the introduction of an independent support service for complainers, giving the example of the service currently provided by the Scottish Parliament.
The Scottish Government has existing arrangements in place through the Employee Assistance Programme and trade unions for staff to discuss issues in confidence with someone outside of the organisation should they wish. These are regularly promoted to staff and will be highlighted as part of our ongoing work to provide a more inclusive organisational culture. The supporting guidance for the updated procedure will sign-post the pathways into raising a formal complaint, the support available, and the options for alternative resolution.
Independent handling of complaints: Scottish Government actions
- Work with recognised trade unions and engage with a range of interests to develop an external, independent process for the investigation and adjudication of formal complaints about a Minister’s or former Minister’s behaviour;
- Consider the option of an initial assessment as part of this external independent handling;
- Include a default expectation that both parties would receive all the information necessary to set out their accounts of events and the same opportunity to comment on the information, with scope for exceptions should the risks of the case require caution; and
- Produce guidance setting out the pathways into raising a formal complaint, the support available, and options for alternative resolution.
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