By Worstie Kirk and Crusty Work but blame me for the headline:
In the field of industrial relations it is good practice when dealing with cases of alleged misconduct to have a formal procedure that sets out the process to be taken and allocates roles to skilled, trained individuals. The process is divided into stages. The first stage involves investigation to establish the facts.
The second stage (if there is need for one) is the hearing. The employee involved will already know the allegations against him/her.He or she will have offered his/her side of the matter and will be able to have had a representative or friend to provide support. The hearing provides a formal setting for full scrutiny of the matter when witnesses from both sides can be heard and questions from both sides put and answered. Notes of the proceedings will be written up.The person conducting the hearing usually will have experience and training in the conduct of a hearing, usually an experienced HR professional. Hearings may be adjourned if there is a need for further evidence to be assessed.
It is important, where possible, to have a different person hearing the case to the person who undertook the investigation. It is a principle of natural justice that no person shall be a judge in a case in which s/he has an interest.
The third stage allows for an appeal against the finding of the hearing. In the interests of natural justice, a different person should hear the appeal from that taking part in the investigation and the disciplinary hearing. The appeal should be open to any fresh information and witnesses and should encompass a full review of the investigation and hearing and whether the decision was fair.
In the government procedures for the Salmond case and others, drawn up and administered by the civil service, there is no right of appeal. Any former Minister facing complaints of misconduct under this procedure has fewer rights than most employees in any other sphere of employment. Why is this? Ms Evans (and Ms McKinnon?) was involved in the drafting of this new procedure, signed off by Nicola Sturgeon on 20 December 2017, between October and December 2017.
It must have been somewhere around this time that two women complainants came forward with complaints to make about the conduct of Mr Salmond. Ms McKinnon was in contact with them in December 2017. She seems to have been designated as the point of contact for the two complainants, according to Mr Salmond’s lawyer.
“Mr Salmond’s lawyer Ronnie Clancy said Ms McKinnon was designated as the point of contact for the two women…”
If this is true, it is likely to have been Ms Evans who did the appointing. It is, perhaps, an important point as it is the Scottish government’s case that the prior contact of Ms McKinnon with the complainants was not fully known to the Permanent Secretary until somewhere around December 2018. It may be difficult to persuade the Holyrood Committee investigating the Salmond affair that Ms Evans did not know these circumstances would lead to the failure to follow the procedures she had drafted.
The procedure devised by senior civil servant, Ms Evans, states that it is the responsibility of the Director of People, Ms McKinnon’s job title, to appoint an investigating officer, a senior civil servant. That person will have had no prior involvement with any aspect of the matter being raised.
Ms McKinnon was appointed to investigate the complaint. It is not clear when this was done but it is likely to be in January when the two women lodged formal complaints against Mr Salmond. Presumably there will be emails, papers to show when Ms McKinnon was appointed. It is not clear whether she appointed herself in accordance with the procedures or was appointed by the Permanent Secretary. It is the position of the Scottish government that Ms McKinnon provided welfare and support to the complainants prior to her appointment as investigator.
In a judicial review by Lord Pentland of the fairness of the handling of the procedures by the Scottish government it was this prior involvement of Ms McKinnon with the complainants that led to the decision that this departure from the procedures was unlawful and that the investigation by Ms McKinnon was tainted by bias.
In March, 2018, Mr Salmond had information from the Scottish government that he was being investigated for misconduct. The procedures say that this decision to proceed is decided by the Permanent Secretary following the investigation of the facts by the investigating officer. It seems to be the position of the Scottish government that Ms McKinnon failed at this time, and subsequently for a period of nine months or so, to inform the Permanent Secretary of her prior contact with the two complainants. It seems to be that the Permanent Secretary, Ms Evans, was sufficiently far removed from the case at its beginning in December 2017 to be unaware of the nature of the contact (and perhaps the fact that there was contact) between Ms McKinnon and the complainants. Ms McKinnon then failed to discuss with the Permanent Secretary that aspect of her involvement in the case for months. These are inferences to be drawn from the available facts.
As a consequence of the action of Ms McKinnon and the finding by Lord Pentland that the investigation was tainted with bias, the investigation of the facts by Ms McKinnon could not be relied upon. Although both Ms Sturgeon and Ms Evans spoke about the possibility of re-investigating the complaints raised, it was the involvement of the police and their investigation that took the matter forward to a criminal trial. It could not have been wise for Ms McKinnon to re-investigate these complaints. The claims by Ms Sturgeon and Ms Evans that the investigation by Ms McKinnon was impartial is questionable in the circumstances.
If Ms McKinnon acted in accordance with the procedures and appointed herself as investigating officer it appears remarkably foolhardy. Can it be the case that Ms McKinnon had forgotten that the investigating officer should have had no prior involvement with the complainants?
If the Permanent Secretary appointed Ms McKinnon as investigating officer she was not acting in accordance with the procedures in doing that. It is for the Director of People to appoint an investigating officer. Why would the Permanent Secretary fail to act in accordance with the procedures she had drafted a few weeks before? She is stepping some way into the investigation procedure. Ms Evans would eventually have to decide the case on the basis of the facts established in the investigation. In the interests of natural justice and the effective working of procedures it is necessary for roles to be defined and followed. Failing to follow the procedures risks undermining them and eroding trust that they will be followed effectively and impartially.
A Committee in Holyrood parliament is currently investigating the Salmond affair.The remit is to consider and report on the actions of the First Minister, Scottish government officials and special advisers in dealing with complaints about Alec Salmond, former First Minister, under the Scottish government’s procedures including actions relating to the Scottish Ministerial Code.
Usually, in the field of industrial relations, when it is possible that the alleged conduct complained about might be criminal, the matter is left to the police to investigate, if the matter is referred to the police. The company halts its own investigation. This is sensible. Conduct that is found to be criminal is likely to be judged as much more serious than misconduct that is not criminal. The police are better able to investigate criminality than company managers. The government procedures allow the government to continue with its own investigation while the police make a parallel investigation into potential criminal activity. There is a risk that this will result in muddying the water.
Two additional flaws (there is no appeals procedure) might be seen in the drafting of the government procedures. There should be no role for support for complainants other than a friendly, open, impartial, speedy and skilful resolution of the complaint. There is scope for others to provide support in meetings and generally either through a Trade Union representative or a friend. Why, in impartial proceedings, would support not also be offered to the person complained about?
Police involvement in investigating possible criminality should end further investigation by the Scottish government until the police investigation is complete.
There is plenty for the Holyrood Committee to investigate in the application of the procedures.