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Home » Publications » Human Resources Policy and Guidance » Personnel Management Manual » Equal opportunities policy and complaints procedure » Chapter 7 - Equality and diversity complaints procedure pre 1 August 2007

Chapter 7 - Equality and diversity complaints procedure pre 1 August 2007

Introduction Rights and responsibilities of staff Informal complaint Formal complaint Investigators Timeliness of investigation Conduct of investigation After the investigation Index of complaints Complaints involving outside bodies/people

Appendices

  1. Formal complaint form (not currently available)
  2. Roles and responsibilities
    3.
  3. Legal liability
    4.
  4. Examples and definitions
    5.

    Introduction

  1. This chapter explains the CPS procedure for dealing with complaints of discrimination, harassment, victimisation and bullying and is without prejudice to the rights of staff to pursue a grievance through external procedures (see paragraph 6). The CPS is committed to treating everyone equally regardless of their gender, race, colour, nationality, religion, ethnic or national origins, disability, age, marital status, working pattern, sexual orientation or gender reassignment.

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    Rights and responsibilities of staff

  2. All staff have the right to equality of opportunity in all areas of employment and to a working environment that is free from discrimination, harassment, victimisation and bullying. Staff also have the right to complain about discrimination, harassment, victimisation and bullying in the workplace and to have any complaint dealt with fairly, thoroughly, sensitively and quickly. All staff have an individual responsibility to respect the dignity of others at work. A complaint form is at Appendix 1. Roles and responsibilities are set out at Appendix 2.
  3. Any party to a complaint may seek advice from, and be assisted by, a colleague or trade union representative at any time during this procedure.
  4. It is the effect of the behaviour on the recipient that is crucial to the investigation of a complaint, not the intention of the person against whom the complaint has been made.
  5. Any complaint brought under these procedures will be treated seriously.
  6. Staff should use the internal complaints procedure in the first instance. They may, however, have the right to make a complaint to an employment tribunal (ET) within three months of the act complained of under the legislation detailed at Appendix 3. Staff may seek assistance from the Equal Opportunities Commission, the Commission for Racial Equality, or the Disability Rights Commission. A complaint can still be pursued through the internal procedures after it has been lodged with an ET. ETs will generally agree to postpone hearings in order to facilitate this. The Advisory Conciliation and Arbitration Service (ACAS) can also be involved before or after making a complaint to an ET.
  7. Often, allegations and incidents of discrimination, harassment, victimisation and bullying (some examples are given in Appendix 4) can be effectively resolved if they are raised at an early stage and dealt with promptly at a local level. However, it is appreciated that making complaints of this kind can be difficult and sensitive. The CPS procedures are intended to be sufficiently flexible to take account of this.
  8. It is up to the individual to decide whether they wish to take forward a complaint but in the first instance they should seek advice from an internal adviser. A list of internal advisers can be obtained from Service Centre HR Officers/Employee Relations Unit for HQ staff. Advice can also be sought from a trade union representative, staff counsellor, a colleague or a member of the National Black Crown Prosecution Association (NBCPA).

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    Informal complaint

  9. If the individual feels able to do so, s/he may raise the problem informally with the person who is creating the problem, pointing out that their conduct is unwelcome, offensive or interfering with work. It is also open to them to approach any of their line managers not involved in the grievance.
  10. The individual may progress a complaint informally in one of the following ways:

    • they may arrange a meeting with the person creating the problem, ask an internal adviser to accompany them and present the complaint themselves;
    • they may ask an internal adviser to set up a meeting and present the complaint for them while they are present;
    • they may ask an internal adviser to arrange a meeting and present the complaint without them being present;
    • they may arrange a meeting and present the complaint themselves;
    • they may be accompanied by a trade union representative, staff counsellor, a colleague or a member of the NBCPA.
  11. Alternatively, the complainant may contact Counselling and Support Services who can arrange mediation, a confidential process facilitated by a trained mediator.
  12. Internal advisers can help to develop an agreement on the way forward and also what will happen if the agreement is broken. Such an agreement is not formal or binding but is dependent on goodwill.
  13. If the complainant is dissatisfied at the outcome of the meeting, or any agreement is not adhered to, they may pursue their complaint formally.
  14. During the informal stage, the person against whom the complaint has been made may be advised, or accompanied at any meeting, by those referred to in paragraph 8. The same applies during the formal stage.

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    Formal complaint

  15. If the individual wishes to adopt a formal approach, either during the informal stage or where a complaint has not been resolved informally, the complaint format Appendix 1 should be completed. Alternatively, the complaint form may be completed on behalf of the individual by an internal adviser, the line manager, their trade union representative or a colleague, for the complainant's signature. Complaints will be dealt with in confidence, and support will be available to staff throughout the investigation and any subsequent disciplinary process.
  16. Details of the complaint should include:

    • the name(s) of the person(s) alleged to have discriminated, harassed, victimised or bullied;
    • the nature of the complaint;
    • the facts, with reference where appropriate, to any documents or incidents, together with the relevant dates;
    • the effects of the behaviour on the complainant;
    • any other relevant material (e.g. doctor's certificate);
    • the names of any witnesses; and
    • the details of any informal action.
  17. The form should be submitted to the Service Centre HR Officer/Employee Relations Unit for HQ staff as soon as possible, and within three months of the incident (or the latest incident if a series of incidents is involved). If a complaint is submitted outside the time limit, reasons for the delay must be included (see para 20). Examples of where a complaint might be investigated when it has been registered outside the three month time limit are:

    • where the complainant had been absent from the office during the three months;
    • where the complainant can demonstrate that their concerns had been registered previously elsewhere - e.g. with a trade union representative, staff counsellor or a HR manager.
  18. The sensitive nature of enquiries into complaints of discrimination, harassment, victimisation and bullying must be recognised by all parties, and care taken to ensure that no unnecessary distress is caused to anyone involved. It is important that all parties connected with a complaint understand that it should not be discussed more widely, and that breaches of confidentiality may be subject to disciplinary action.

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    Investigators

  19. The complaint will be assumed to have been made in good faith and accordingly the HR Officer, having acknowledged the complaint, will forward it, together with any appropriate briefing, to the Department's investigators. The HR Officer will inform the ABM/HQ Director of the complaint. The CPS uses a pool of external and internal investigators to carry out investigations in accordance with this procedure. Each investigation will be conducted by two investigators, one external and one internal. The HR Officer will inform the parties of the names of the investigating officers. The parties should raise with the HR Officer any valid objections to the choice of investigating officers within five working days of receiving notification of their names.
  20. It will be for the investigators to satisfy themselves that the complaint discloses issues which should be investigated. It will also be for the investigators to decide whether complaints received outside the time limit (para 17) should be investigated. Decisions, with reasons, not to proceed with an investigation will be confirmed in writing, via the HR Officer. Appeals against such decisions should be made, in writing, to the HR Officer within 10 working days of receipt. The HR Officer will appoint an appellate authority (who, as a minimum, will not be below Level B Pay Band B2) and inform the appellant. The appellate authority will determine the appeal as a paper exercise and will seek to inform the appellant of their decision, in writing, within 10 working days of receiving the papers.
  21. The investigators will send a copy of the complaint to the person against whom the complaint has been made within 5 working days of receipt of the complaint or within 5 working days of a decision to proceed with an investigation. The person against whom the complaint has been made may submit to the investigators an initial, written, response. Any such response should reach the investigators within 10 working days of receipt of the complaint. The investigators are not required to wait for a response before starting the investigation and will copy any response to the complainant before the complainant is interviewed.

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    Timeliness of investigation

  22. It will be important to establish the facts and to resolve the complaint as quickly as possible. The investigators will normally be appointed within 10 working days of the complaint being received and the investigation should be completed within 10 weeks of the date the investigators are appointed. The parties will have the opportunity to make their case and have it heard. Each party will be provided with a copy of the account of the other party and have an opportunity to comment on it. The investigators will be accountable for the progress of the investigation and for keeping the parties informed of progress, preferably at intervals of not more than 4 weeks.
  23. The investigators are responsible for ensuring that the complaint is investigated promptly. The period of the investigation may, exceptionally, be extended - for example, if the investigation proves complex or if key witnesses are unavailable. The investigators should agree any extensions with the appropriate HR Officer and in such circumstances, both parties must be informed by the investigators of the extension, the reason for it and given a revised date by which it is expected that the investigation will have been completed.
  24. A decision to transfer or suspend the person named in the complaint may be made at any time during the complaints process if considered appropriate. Any such decision must be made in accordance with paragraphs 3.28 - 3.33 and Appendix 1 to Volume 2 Chapter 3. It is important that no action is taken that may give rise to a complaint of victimisation whilst awaiting the outcome of a complaint. Complainants should not normally be moved from their usual duties. However, there may be cases where complainants find it difficult to continue in the same office or where it is impractical to keep the parties working together until the outcome of the complaint is known. In those circumstances, HR Officers and line management must try to ensure as far as possible that no steps are taken with regard to the complainant without full consultation with him/her and preferably, with his/her trade union representative or colleague.
  25. It is important that the parties understand that they have a responsibility to co-operate with the investigation and to attend interviews as required by the investigators. If either party is absent because of sickness or is otherwise unavailable for work, the investigators will endeavour to make alternative arrangements to facilitate an interview. However, the parties should be aware that if one or other of them (or both) consistently declare themselves to be unavailable for interview, the investigators will, at their discretion and bearing in mind the timescale for an investigation (see para 22), conclude the investigation without interviewing that (or either) party. Similarly, if, in the opinion of the investigators, one or other (or both) of the parties are failing to co-operate satisfactorily with the investigation, the investigators will, bearing in mind the timescale, progress and conclude the investigation. If the investigators decide to conclude an investigation in the circumstances described in this paragraph, written reasons will be supplied to the parties and copied to the appropriate HR Officer.

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    Conduct of investigation

  26. The aim of the investigation will be to make every reasonable effort to establish the facts of the complaint and for the investigators to determine whether, on the balance of probability, the behaviour complained of was inappropriate/unacceptable. The most important consideration is for a fair outcome to be achieved. The investigators may therefore adopt a flexible approach to the conduct of the investigation according to particular circumstances but must stay within the basic structure of the overall procedure. If the investigators deem it necessary to search desks and cupboards on official premises, this should be carried out in accordance with paragraph 3.37 of the Discipline Chapter (Volume 2). Investigators will have the discretion to consider any further information submitted by any party prior to the report of the investigation being written.
  27. The investigators will, in relation to the complainant:

    • arrange an interview, advising the complainant of their right to be accompanied by a trade union representative or colleague;
    • remind the complainant not to discuss the complaint with other members of staff, and advise them that disciplinary action may be considered if confidentiality is breached.
  28. The investigators will, in relation to the person against whom the complaint has been made:

    • arrange an interview after the complainant and any witnesses have been interviewed;
    • advise them of their right to be accompanied at the interview by a trade union representative or colleague;
    • instruct them not to discuss the complaint with other members of staff, and advise them that disciplinary action may be considered if confidentiality is breached.
  29. The investigators will:

    1. interview the complainant, ensuring notes are taken;
    2. supply the complainant with a draft note of their interview and invite comments;
    3. interview and obtain signed statements, as appropriate, from material witnesses. If preferred, the statement can be in the form of an interview note;
    4. where agreement cannot be reached with the complainant, record the points of contention and attach them to the note of interview;
    5. before interviewing the person against whom the complaint has been made, send them a copy of the final version of the note of interview with the complainant, together with copies of any signed witness statements/interview notes;
    6. at the same time as (v), send copies of any signed witness statements/ interview notes to the complainant;
    7. interview the person against whom the complaint has been made, ensuring notes are taken;
    8. supply the person against whom the complaint has been made with a draft note of their interview and invite comments;
    9. where agreement cannot be reached with the person against whom the complaint has been made, record the points of contention and attach them to the note of interview;
    10. supply the complainant with a copy of the final version of the note of interview with the person against whom the complaint has been made and invite comments;
    11. seeking to establish the facts, have access to any personal/personnel files and any other relevant documents;
    12. try to resolve any discrepancies e.g. by re-interviewing witnesses if necessary;
    13. carry out the investigation within 10 weeks of receipt of the complaint and keep the parties advised of any factors preventing an early resolution;
    14. decide whether the complaint is upheld;
    15. produce a report of the investigation with notes of interviews, witness statements and supporting documentation attached;
    16. submit the report to the HR Officer who referred the complaint to them and, at the same time, supply copies of the report and its attachments to the complainant and the person(s) against whom the complaint has been made. If the HR Officer believes that the inquiry has disclosed gross misconduct, the report should be sent to the Employee Relations Unit, HR Directorate.

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    After the investigation

  30. Either party to a complaint may appeal against the investigators' findings. Any appeal must be in writing and submitted to the appropriate HR Officer within 10 working days of receipt of the investigators' report.
  31. The HR Officer will appoint an appellate authority who will be at least two pay bands above that of the appellant and who will have had no involvement in the complaint. As a minimum, the appellate authority will not be below Level B Pay Band B2. The HR Officer will provide the appellate authority with the investigators' report and attachments and will inform the other party, in writing, that an appeal has been lodged against the investigators' findings. Late appeals will only be considered if, in the opinion of the appellate authority, good reason for the delay is given.
  32. Appeals will only be considered by the appellate authority if they produce material which could not have been made available to the investigators or if there has been a procedural irregularity.
  33. The appellate authority will accede to any request from the appellant for an interview before reaching a decision. At such an interview, the appellant may be accompanied by a trade union representative or colleague. A note of the interview will be prepared - the appellate authority may have a note taker (who will have no connection with the complaint) for this purpose - which will be copied to the appellant for comments.
  34. Every effort should be made by the appellate authority to inform the appellant of their reasoned decision, in writing, within one month of receipt of the appeal. A copy of the decision will be sent to the HR Officer who, in turn, will inform the other party, in writing, of the outcome of the appeal.
  35. If the investigators uphold the complaint, in whole or part, and no appeal is lodged (HR Officers will wait for the appeal period to elapse before moving to the next stage), the papers will be submitted to a disciplinary authority. The same will apply if the appellate authority upholds the investigators' decision, in whole or part, or if the investigators conclude that the complaint was frivolous or vexatious.
  36. The HR Officer will appoint a disciplinary authority on the same basis as the appellate authority (see para 31). They will not be the same person.
  37. A range of options is available to the disciplinary authority. Action could include any of the following, as appropriate:

    • the recognition that counselling and support may be needed and advice sought, for example, from a staff counsellor;
    • training/refresher training for either party;
    • the transfer of one or other party but being mindful of the need to avoid action that could be construed as victimisation;
    • disciplinary proceedings against a person who is found to have discriminated against, harassed, victimised or bullied someone, avoiding action that could be misconstrued - e.g. moving the harasser to what could be perceived as a more prestigious job or to an office nearer home;
    • disciplinary proceedings against a person who makes a frivolous or vexatious complaint;
    • a review of policies and/or procedures.
  38. The disciplinary authority will decide upon the appropriate course of action and inform the parties, in writing. If s/he determines that disciplinary action is appropriate, a disciplinary charge will be drafted, either by the disciplinary authority or someone acting on their delegated authority, and put to the individual concerned (see Volume 2 Para 3.40 et seq.). The findings from the investigation will form the basis for the disciplinary charge.
  39. It will not be necessary to copy the investigators' report (or any part of it, including its attachments) as material in support of the disciplinary charge because the individual will already have a copy. It will be sufficient to specify the supporting material in the minute putting the disciplinary charge.
  40. If the disciplinary authority concludes that the investigators' report and findings amount to minor misconduct, s/he should arrange an interview with the individual on that basis and then issue an oral/ written warning, as appropriate. The individual may be accompanied by a trade union representative or colleague and the disciplinary authority may have a note taker.
  41. Either party to a complaint may appeal against the disciplinary authority's decision, other than a decision to initiate disciplinary action, notified to them in accordance with paragraph 38. Any appeal must be made to the appropriate HR Officer, in writing, within 10 working days of receipt of the disciplinary authority's decision. The parties will be notified of their right of appeal when the disciplinary authority informs them of his/her decision.
  42. When an appeal is received, the HR Officer must inform the other party. The HR Officer will appoint an appellate authority who will usually be employed at the next pay band above the disciplinary authority. The appellate authority will have had no involvement in the complaint.
  43. Appeals will be dealt with in accordance with paragraphs 33 and 34. Late appeals will only be considered if, in the opinion of the appellate authority, good reason for the delay is given.
  44. Any appeal against a finding of minor misconduct and/or any warning issued will be dealt with in accordance with paragraphs 41 - 43. Appeals against a finding of serious or gross misconduct and/or any penalty imposed will be dealt with in accordance with paragraphs 3.64 - 3.69 of Volume 2.

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    Index of complaints

  45. A confidential index of complaints which have been investigated will be kept by the Employee Relations Unit for monitoring purposes. The index will contain the date and nature of the complaint and the CPS Area. HR Officers should ensure that this information is supplied to the Employee Relations Unit.

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    Complaints involving outside bodies/people

  46. Complaints made or received concerning a member of staff employed in another department or agency but still within the Civil Service should, as with internal complaints, be referred to the appropriate HR Officer. The HR Officer will liaise with the other department and they will jointly decide which department is to take the lead in the complaint. The complainant, or the person named in the complaint, will be informed of the arrangements agreed between the two departments.
  47. Complaints made or received concerning someone employed by a non Civil Service body, or employed in some other capacity, should be referred to the appropriate HR Officer who will, if necessary, consult the Employee Relations Unit to discuss the best way forward. Arrangements will depend upon the outside body/person involved - for example, complaints against a barrister or solicitor will be brought to the attention of the Bar Council or the Law Society, as appropriate - but, as with complaints involving civil servants, the complainant/person named in the complaint will be informed of what action is to be taken.
  48. Although it is not practicable to prescribe detailed arrangements involving outside bodies/people, staff should be aware that any complaints will be treated seriously and, in so far as it is possible for the Department to do so, pursued.

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