Scottish Government response to harassment reviews

Updated and single process for complaints

Ms Dunlop recommended that there should be a single process governing the raising of a complaint against a Minister by a civil servant, whether within the Scottish Government policy ‘Fairness at Work’ or separate to it. The Scottish Government accepts this recommendation. We recognise the need and benefit of having an effective grievance policy for staff which signals the routes for raising concerns which occur in the workplace, whether about Ministers, staff or others. An updated and single procedure for complaints about a Minister’s behaviour will be developed.  

The updated process will provide for the handling of formal complaints made by civil servants about alleged bullying or harassment by a current or former Minister. The process will also address the following related points observed by Ms Dunlop and the Committee.

Historic complaints

Ms Dunlop recommended that there should be no time limit for complaints of sexual harassment against serving or former Ministers. Ms Dunlop suggested a time limit could be considered for other types of complaints, with provisions for this to be overridden. The Committee was also of the view that policies must allow for historic complaints.

The Scottish Government agrees that there should be no time limit for making a complaint of sexual harassment and this will continue to be reflected in our policy and practice. We will carefully consider, engaging external expertise, the concept of a time limit with an override provision in relation to other types of complaints, and make distinctions as required. In the spirit of clarity and simplicity, ideally this position would align across processes for bringing other complaints such as about other civil servants or third parties. We will also take full account of the Scottish Government’s legal obligations as an employer under the Equality Act 2010 to ensure that our staff are protected from all types of harassment in the workplace.

Support for the Minister during the process

Ms Dunlop recommended that support for a Minister subject to a complaint should be set out as a clear obligation. The Scottish Government accepts this. We will offer advice on process and wellbeing support to all parties involved with a complaint. The support available will be set out clearly in guidance.

Ministers are expected to cooperate fully with investigations, in common with the expectation that already exists for direct employees. In order for the Scottish Government to fulfil its employer obligations, it is important that clear standards are set for Ministerial behaviour and a clear expectation is articulated that – in the event of any complaints received – Ministers will engage positively with the agreed process.

The Ministerial Code (section 6) sets out the obligations on current Ministers in regard to their dealings with the civil service, principally the obligation to “treat all those with whom they come into contact with consideration and respect”, and to “observe the conditions of a good employer with regard to the terms and conditions of those who serve them” [1]. The expectation of cooperation with the established process will be included in consideration of any revision to the Ministerial Code and will be made explicit in the updated procedure. It also forms part of the Ministerial induction programme. Former Ministers are not currently bound by the Ministerial Code, but we will consider making it explicit in the Code that there is an expectation of current ministers (which they accept as current ministers) that they will co-operate with any investigation that begins or continues after they leave office.

Guidance

The Committee highlights the level of detail in the existing procedure and calls for guidance to be put in place to support any updated procedure, including for witnesses. The Committee points to the materials produced by the Ethical Standards Commissioner for Scotland as an example of good practice in this area.

The Scottish Government agrees that there should be guidance associated with the updated procedure and this will be put in place. It will draw on the existing guidance for investigations available within ‘Fairness at Work’[2] and the guidance available from ACAS. We will benchmark our guidance, including with the Ethical Standards Commissioner.

Initial learning from the application of the procedure in 2018 highlighted areas for further explanatory notes and guidance material and these will also be considered in the new guidance to be produced. These include:

• Exploring initial contact, including the form of the contact, the sources of advice and the scenarios where external advice may be sought;
• Examples of mutually agreed resolution;
• Guidance on managing the movement of parties between different roles;
• Further clarity about the meaning of ‘no prior involvement’ in the formal complaints process, and options for sourcing and supporting an Investigating Officer;
• Guidance on the role of witnesses;
• Communication scenarios and process flows including keeping people informed of progress and ability for parties to access information about the complaint and other documentation (in line with data and privacy obligations); and
• Timescales adopted and monitoring for timely resolution.

The Committee suggests that changes should already have been made to the procedure, or additional guidance produced, to clarify the interpretation of paragraph 10.

The Scottish Government’s conclusion was that making piecemeal updates to the procedure in advance of the various reports was not the best approach. However, it is clear that all parties need to have confidence in the process should a complaint be raised ahead of an updated procedure being in place. We will endeavour to get a new procedure in place as quickly as possible and, at the latest, by the end of this calendar year. In the event that a complaint of harassment is raised between now and then, we will be guided by the 2017 procedure. However, in applying that procedure, we will take account of the comments and recommendations made in the three reports we are responding to – in particular in relation to the correct interpretation of section 10. We will also liaise closely with recognised trade unions and draw on external advice as appropriate. The provisions for handling complaints about ministers - other than harassment – within Fairness at Work will also remain in place.

Working with recognised trade unions and external advice, our practice would apply the lessons from the judicial and other reviews, to maximise trust in the process and to minimise any risks. Alongside the updated procedure, associated guidance will be explicit and clear on separation of roles, and that appropriate guidance and support must be provided for all parties.

Alternative resolution

Ms Dunlop suggested that mediation, while it could not be compulsory, has potential for use in some complaints of harassment. The Committee noted Ms Dunlop’s comments on mediation but suggested that mediation could be problematic in cases between a civil servant and a former Minister. Mr Hamilton similarly questioned whether a relatively informal resolution procedure would be appropriate or effective in protecting the rights of all parties.

The fact that the three reports offer differing opinions on mediation for dealing with harassment complaints about Ministers illustrates the sensitivity required in positioning this within a procedure. Whilst alternative resolution exists as an option currently, it was not felt to be appropriate in the case of the complaints against the former First Minister Alex Salmond. The reasons for this have been given in evidence and recognised by the Committee. Those reasons include the wishes of the complainers. We are committed to a person‑centred approach and exploring all options with staff who raise concerns. Alternative resolution including mediation will continue to be available, and we will give further consideration to how best to reference these options in the updated procedure and associated guidance. Mediation will only take place if all parties are willing to engage voluntarily.

Ms Dunlop recommended that consideration be given to introducing a process of “censure with consent”, to denote an acceptance that there has been unacceptable conduct on the part of a Minister towards a civil servant. She added that if this was put in place, there should be a post-outcome review of any early application. While potentially this could be one of the penalties applied if a complaint was upheld, it requires careful consideration as there are implications for the operation of Government and the appointment of Ministers by the First Minister. We will consider this matter in the development of the updated procedure.

The Committee expressed a view that Ms A and Ms B should be given an opportunity to comment on Ms Dunlop’s recommendations. We will seek the views of Ms A and Ms B on the recommendations and our wider organisational response.

Updated and single process for complaints: Scottish Government actions

We will:

• Develop an updated procedure for complaints about a Minister’s or former Minister’s behaviour;
• Produce guidance to support the procedure, which will be explicit and clear on separation of roles, and that appropriate guidance and support must be provided for all parties;
• Continue to apply no time limit for making a complaint of sexual harassment in policy or practice;
• Make explicit in the procedure the expectation of cooperation;
• Offer advice on process and the appropriate support offer to all parties involved;
• Give further consideration to referencing alternative resolution options (including informal routes and mediation), in the procedure and associated guidance;
• Consider the introduction of a process of censure with consent; and

Engage with a range of interests as we develop the procedure, including offering Ms A and Ms B an opportunity to comment on Ms Dunlop’s recommendations and our wider organisational response