The States of Jersey Employment Board Bullying and Harassment – Follow-up Report

The HR Lounge Ltd Strictly Confidential

The States of Jersey Employment Board Bullying and Harassment - follow up 2024

R.4/2025

Martin Tiplady, Senior HR Consultant, The HR Lounge Ltd

21 August 2024

Introduction

1. We were invited to undertake a review of the position concerning cases of Bullying and Harassment and progress made since our earlier reports in 2018 and 2021.
2. This report has been prepared for Lesley Darwin, Chief People Officer.
3. We believe that we have had a good insight into your organisation. We have spent time reviewing management information, policies and other documents and spent time too speaking with complainants, investigators and fact finders, the trades unions, chief officers and managers and HR business partners.
4. The conclusions reached in this report were based on material presented to The HR  Lounge.  No  additional  material  was  used,  except  where  specifically mentioned. Any relevant additional material, of which we are unaware, may affect the conclusions reached. We reached our conclusions and prepared this report in good  faith  and  cannot  be  responsible  for  failing  to  consider  information  or evidence that was not available to us at the time of writing this report.
5. Our assessment is based on our best understanding and interpretation of material presented.  This  report  must  be  considered  in  its  entirety  and  we  cannot  be responsible for omissions in reproduction or amendments made by other parties after its submission.

The Requirement and background

6. The review was required to follow up the previous two reports that we prepared about bullying and harassment complaints within public services in Jersey. This latest assignment was intended to gauge progress made in implementing findings and to consider the culture that is now prevalent within the organisation and the ability to speak up or the willingness of staff to report concerns. The culture to be examined involved all aspects of the public service, including political leadership, senior leaders and organisational culture within individual departments.
7. The review was intended to consider:

1. How the organisation used evidence to assure itself and was proactive in addressing areas where there were concerns of bullying and harassment; and
2. The effectiveness of restorative and other processes introduced to bring about resolution; and
3. The mechanisms and assurance of the effectiveness of the mechanisms to report concerns; and
4. The  response  of  the  organisation  in  addressing  concerns,  supporting  employees  and/or investigating where necessary; and
5. The outcomes and resolution of concerns raised.

8. The review considered and has commented on:

1. The policy framework and development since the previous two reports; and
2. The application of policies and procedures and their effectiveness; and
3. Evidence and information available to the employer that provide assurance and give the employee a voice in this information; and
4. The role of organisational leaders in ensuring effectiveness and fairness in addressing concerns.

9. Part of our work was to look at one or two more sensitive cases though it was not intended that we carried out a more detailed case-by-case assessment as per previous exercises. The following was made available to us:

1. Policy framework and procedures; and
2. Case files - as required; and
3. Organisational reporting and monitoring; and
4. Access to trades unions; and
5. Reports into organisational culture, staff surveys etc.; and
6. Exit interviews; and
7. Access to the case management team.

10. To carry out this assignment, we:

1. Undertook a desktop review of documents; and
2. Conducted structured interviews with:

1. A representative of the Employment Board as directed: and
2. Members of the Executive Team; and
3. Chief People and Information Officer; and
4. Such other senior staff closely involved in cases - as advised; and
5. Case Management Unit; and
6. Internal Auditor; and
7. Speak Up Guardian; and
8. Such others as determined.

3. Conducted structured focus groups with:

1. HR Business Partners; and
2. A sample group of investigators and fact finders; and
3. Trade Unions (we understand that their views have been submitted to a committee). We would wish to access these and talk with them; and

4. A selection of Complainants to elicit information about their handling.

4. Examined one or two more sensitive cases and analyse their progress and resolution; and
5. Individually interviewed a sample of complainants.

11. A full list of interviewees and participants is provided in this report. Methodology
12. Our review took the form of:

1. A desktop review of the relevant procedures, policies and code of conduct; and
2. Early conversation with Lesley Darwin, Chief People Officer - on 24 March 2024 and 30 April 2024 - and senior CMU staff - on 19, 24 and 30 April 2024 - to understand the current organisational structure and changes since the last review, changes that had occurred since our last review and progress on implementing the recommendations contained within the 2018 and 2021 reports, determine the parameters of this latest review and establish new lines of inquiry; and
3. A review of the recommendations contained in the 2018 and 2021 reports; and
4. Focus groups for HR Business Partners and Advisors held on 30 April 2024 and 28 May 2024 and attended by:

5. A focus group held on 29 May 2024 for Investigators and Fact finders and attended by:

6. One-to-one  interviews  with  a  range  of  complainants,  some  six  in  total  (for  reasons  of confidentiality, these are not listed here by name); and
7. One-to-one interviews with: Leadership

Case Management Unit

Trades Unions

Others

8. A demonstration of the NAVEX system on 3 July 2024 - delayed due to operational problems.

13. Throughout, we maintained close contact with Lesley Darwin and Colette Wilson .
14. All those who participated did so willingly and helpfully. Some interviews were distinctly more constructive and informative than others.
15. We considered whether it might be appropriate to interview other staff members. Of course, we wanted to get to the truth of what is taking place but in so doing, we also needed to consider the issue of proportionality and cost as well as the potential impact of staff and time. We were doubtful that much by way of new threads of inquiry would be identified. As such, we concluded that there was unlikely to be any material benefit in staging further interviews or carrying out further fieldwork and if we had done so, that we may have derived opinions that may have altered our overall assessment.
16. We believe that we have fully and thoroughly researched and analysed the issues contained herein and concluded comprehensively and fully on them.

 Executive Summary

17. Overall, we conclude that you have continued to make good progress. In all respects - policy, managerial awareness, quality of investigations, numbers of complaints - you have improved the position from that first noted in 2018 and reviewed in 2021. Even the fact that you wish to review this further emphasises how important you view this work and wish to be the best that you can in dealing with allegations of Bullying and Harassment.

18. This report may highlight some areas of further improvement. But we wanted to acknowledge that some aspects of your work are way more than what other like- minded employers offer and is a testimony to those involved and the commitment and improvements that they and you have shown in bringing about these changes.

19. The issues about working on an island such as Jersey may be relatively unique but you have overcome many of the workplace cultural issues by the quality of the systems and processes that you have introduced. Some aspects of your work - we would regard - as leading edge. Like every good system, there are always ways in which further improvements can be brought about. But we wanted to acknowledge early on in this report just how far you have come. We commend you for the progress made.

20. Inevitably, a report such as this is probing about what does not work or might require modification. As such, this report should not be considered out of context or disproportionately. It represents ideas and thoughts that - with little or no cost

- we think you might wish to consider. But we would not be doing what is asked if we were not putting forward some ways that might assist you to find ways of further improving what you have.

21. Undoubted, the mood is markedly better even though there will be those who disagree. And sometimes their opinions were acutely expressed. But taking all things into consideration and reviewing your circumstances alongside others, we believe that what you have done is to be commended and what is suggested here are ways that progress might continue.

22. It is important that we express how much we sensed a stronger level of openness on the part of the Employer. And a greater confidence by staff that they might be heard. Not by all maybe but as one employee described it our bosses have come on in leaps and bounds and seem to listen more attentively.

23. In a study such as this, it is inevitable that there will not be consensus, whether that is about the culture and mood of working in Jersey, the safety in making complaints, the ways that they are dealt with when they arise and the behaviours of those accused and how they are dealt with. In a workforce as large as yours, the variation of views and opinions will be broad.

24. What we have tried to do is to balance views, validate them as far as possible and draw balanced conclusions. Our assessment in the main part is to be impressed by what you have done. But there are further steps which we believe you could - and should - take to embed the actions you have taken thus far. Nothing is controversial or meant to condemn anything that you have done. It is simply put forward as areas that you should keep an eye on and/or suggestions that you may consider - making things even fairer to all.

Recommendations from the 2018 and 2021 reports - progress

25. Set out below is a summary of the recommendations made in our first report and a sit-rep on their status. On balance, we are impressed by how much has been done to implement the findings. It is apparent that more effort is needed in some respects but in all, credit for the progress made should be acknowledged.
26. From the 2018 report, 20 recommendations (green) had been implemented by 2021 and 7 (red) were not.

27. Our observation is that the following have - best that we can establish - not been implemented, either in part of in full:

In part

n. - fourteen-day resolution period In full

k.- unwritten complaints s. - post incident review.

Not agreed

9. - friend system
10. - witness support

l. - promotions

t. - lessons learned.

28. From the 2021 report, we recommended that:

1. You might consider further and specified changes to your Bullying policy and procedure as outlined - agreed and implemented.
2. You  should  consider  changes  to  the  way  that  bullying  complaints  were  received  and responded to - agreed and implemented.
3. You should relaunch the benefits of early resolution and the benefits of a fourteen-day resolution period. As part of this, we suggested that you prepare guidance notes and the like, on how best to prepare managers for dealing with complaints within this period and promote the benefits of mediation - partly agreed and implemented.
4. A new assessment be introduced within the CMU designed to assess the situation when counter claims are submitted - agreed and implemented.
5. This was suggested in our original report but we strongly recommended a new Witness Support programme - not agreed.
6. The team of Investigators be expanded - drawing on independent and external investigative resources as required - agreed and implemented.
7. A new triage system should be introduced within the CMU - not agreed.  

8. The resources of the CMU be increased in order to deal with workload and avoid build up and backlog which might be harmful to your policy - agreed and implemented.

29. Set out below were some additional areas about which - in 2021 - we thought that you might consider further steps to take. These were not put forward as recommendations but as areas - we previously suggested - that merited further consideration.

Values and behaviours  

30. We thought that you should invest further in this programme and continue with what you had set in train. But we also detected cynicism at middle management levels and needed to work more with this level of management to grab their hearts and minds. We thought that you should be firmer on breaches of your Values and highlight instances when these were breached.
31. We believed that one or two departments - either by way of diffidence or organisational snobbery - regarded themselves separate. We thought that all parts of the States should be brought into a common set of Values.

Stress  

32. We encouraged you to undertake a Stress Audit.   Training
33. There was a need to better anticipate and read the signs of bullying and know how best to intervene. We suggested that the Bullying programme should be the subject of regular top up and new manager training.

Below par performance

34. We identified a reluctance to deal with below par performance. For our part, we thought that this was an issue that you needed to consider and contemplate ways in which your management might feel more encouraged and supported to tackle below par performance where it existed.

The lead on complaints and timescales

35. The CMU carried a significant and essential role but we noted instances when they were very much in the lead and accountable when the line management should be driving the resolution albeit with CMU input. We believe that the CMU had a more vital function and other than in the most extreme circumstances, should be involved in particular cases in a more arm's length way and in support

- rather than holding the baton - to drive cases ahead.

Encouragement about coming forward  

36. The Expo Link has been a significant improvement and was popularly regarded as opening a door to complaints being made. The publicity to announce the link should continue and further effort made to encourage take up and use of it.

Dashboard and data

37. We commended the work undertaken to develop a new dashboard. We simply stressed the need for the data derived to be considered and act as the basis for short and long-term actions to overcome issues that emanate from it.

Communications and keeping in touch  

38. A process needs to be found to debrief in a way that does not breach confidence yet instils confidence that the issue has been addressed, confirms that action has been taken and altogether serves to bring closure on the episode.
39. We believed that a follow up telephone call or mini case conference at three or six- month anniversaries would act as a review mechanism and demonstrate interest and commitment to sustained change and improvement.

Quality of files

40. We stressed the need for effective and accurate record keeping. Closing of an investigation and returning to work  
41. We thought it vital that a case was formally closed and a proper debrief process took place.

Complainants

42. We  invited  a  range  of  complainants  to  meet  us.  In  all,  we  spoke  with  six complainants. We were careful not to reopen their concerns or give any sense of case review. Rather, we were at pains to stress that we were interested in their views about the process, communications and their experiences in going through a complaint.
43. The opinions received have been factored into our thinking and conclusions. Aside from providing many names, The CMU and Jersey were unaware of whom we pursued  or  spoke  with.  Their  involvement  was  confined  to  writing  to complainants and urging them to contact us directly.
44. The interviews of complainants was undertaken by a different consultant, being Angela O'Connor, Chief Executive of The HR Lounge.
45. In sum, their views were:

1. Overall, it felt like things are improving as when people follow the process their experience is generally good but more needs to be done; and
2. there appeared to be a good grasp of Bullying and Harassment procedures - though in some cases, this seemed a little peripheral. Also, in some cases, it was suspected that managers had been told to have meetings but this had not developed into a meaningful understanding of what can constitute bullying and harassment and how to resolve matters; and
3. interestingly, the website was not cited at all despite its importance in explaining process. Communications about the detail of difficult situations at work and how to resolve them might be delivered with more impactive rather than by just a signpost to the website; and
4. HR were well thought of and might play more of a role in developing managers and providing support in moving towards a framework of resolution; and
5. There needs to be more clarity about how to differentiate between general complaints and safeguarding issues - these did not seem as clear as we might have expected; and

.

6. Feedback to complainants appeared to be very limited in terms of the people interviewed. Clearly there will be times when no or little feedback can be given but expectations need to be managed. We did feel that outcomes were sometimes more secret than they might have been.

 Politicians and Management

46. We spoke with a cross section of the senior leadership team - as indicated in previous paragraphs as well as the Assistant Chief Minister and Chair of the States Employment Board.
47. The specific issues of dealing with complaints in high density functions was specifically  explored.  Of  course,  the  relationship  between  senior  officers  and politicians has been in close focus in recent months and without highlighting this issue as a major concern for review, we did examine how major differences of opinion and issues might be resolved without detriment and lasting damage.

 Case Management Unit

48. We heard many opinions - from all those interviewed - that the Case Management Unit is richly respected and regarded. Seen as a representative of fair play, the CMU benefited from many positive opinions about their work to the extent that we heard quite a swell of opinion, that they might oversee all cases and not just those referred to them via Navex or individually.
49. This is a long way from the position noted some years ago. Whilst the view about them then was hardly negative, there were strong opinions expressed then about bureaucracy and a tardiness in dealing with matters. Most certainly that is not the case now and Lesley and her team are to be congratulated on the work carried out to centre stage themselves as the guardians of this area of work and a positive force for good.

50. We were impressed with those that we interviewed from the CMU. Both in terms of knowledge of their work and a healthy interest in making a better workplace, their  contributions  and  opinions  revealed  some  quality  staff,  energy  and motivation.

Investigators and Fact finders

51. The views from Investigators were varied, principally depending on whether they were existing employees or former staff brought back to assist. We were especially impressed by the latter and their enthusiasm to be independent and to get to the bottom of the cases that they were asked to review.

HR Business Partners

52. We received a variant set of views from HR Business Partners. Some were positive about  the  process,  investigative  arrangements  and  outcomes.  Others  -  and probably the majority - significantly less so. But they were an impressive group of individuals committed to resolution of these matters and wanting to be involved in how this might come about.

Trades Unions

53. All in all, we met with five trades unions. They were constructive and helpful and their views have been factored into our findings.

Our assessment now

54. Overall, we conclude that you have continued to make good progress. In all respects - policy, managerial awareness, quality and training of investigations, numbers of complaints - you have continued to improve the position from that first noted in 2018 and reviewed in 2021. The work environment is vastly different and values are more apparent - even though we make a comment about their translation into prescribed behaviours. Even the fact that you wish to review this further, emphasises how important you view this work and wish to be the best that you can in dealing with allegations of Bullying and Harassment.
55. Undoubted, the mood is markedly better even though there will be those who disagree. Overall, we sensed a stronger level of openness on the part of the Employer. And a greater confidence by staff that they will be heard. As one employee described it our bosses have come on in leaps and bounds and seem to listen more attentively. Many mentioned that there is much better engagement though there are pockets of difference about this - heard most often and consistently about Health and Education.  
56. This report may highlight some areas of further improvement but we wanted to acknowledge the progress you have made. Indeed, some aspects of your work is far more than what other like-minded employers offer and is a testimony to those involved and the commitment and improvements that they and you have shown in bringing about these changes.

57. The issues about working on an island such as Jersey may be relatively unique but you have overcome many of the workplace cultural issues by the quality of the systems and processes that you have introduced. Some aspects of your work - we would regard - as leading edge. But like every good system, there are always ways in  which  further  improvements  can  be  brought  about.  But  we  wanted  to acknowledge early on in this report just how far you have come.
58. Inevitably, a report such as this is more probing about what does not work or might - we suggest - require modification or benefit from some minor change. As such, this report should not be considered out of context or disproportionately. But we would not be doing what is asked if you were not seeking ways of continuously improving what you have and we did not offer our opinion on what might assist you to achieve such improvement.
59. For ease of your consideration, we have broken our comments into the categories which we used in our fact finding.

Making a complaint

60. The level of knowledge about the Bullying and Harassment policy and the means of dealing with complaints was noted to be discernably higher than when we last carried out our review. Certainly, it seemed that the general level of awareness was significantly greater.

Definition of Bullying and Harassment

61. The one aspect of this though that emerged was the understanding of what constituted bullying and what did not. We are not saying that that it was majorly misunderstood but we did pick up some vibes that to be accepted as a complaint of bullying, there had to be some physical or continuous effect of it.
62. Legally, that is not the case and we came away with a view that you may wish to consider providing a clearer definition of bullying and harassment as well as a Jersey interpretation of the seriousness with which you regard such matters if they arise. Much that may need localising, ACAS guidance provides a very helpful and broad definition that might assist you to this end.
63. To illustrate our point, we listened to some instances in which the case of bullying was not about any physical or obvious mental pressure but about constant failure to provide clarity about duties, objective setting or even provide a job description yet challenge an individual when they failed perceived requirements. In other words, a cover up - in all but name - of a failure to properly manage. This is a recognised form of bullying as is an ongoing and implied requirement to have need of semi-permanent cover for a resource shortage without recognition or acknowledgement.

64. On the plus side, there has clearly been quite a lot of discussion by managers about bullying and harassment. This was referenced several times. However, this did not always appear to translate into a clear understanding of what the issues might include, what bullying entailed or how to resolve them.

Believing a complainant

65. We also concluded that a fundamental shift may be required which alters the way that individual complaints were received and pursued. In short, we heard about instances of early resistance to claims and implied and premature justification given by managers. This is not to suggest that individual cases were wholly resisted but our experience is that if one receives and investigates a complaint from a point of belief, such is different from seeking early justification about an alleged behaviour.  
66. In fact, we did hear two examples of resistance when a complainant explained that I was chastised by the HR person for raising it with my manager rather than approaching the person directly which I thought was not helpful and another stated that my supervisor told me off for making the complaint formal. To seek and accept early justification is tantamount to dealing with these matters by stealth rather than retaining an entirely open mind.  
67. All parties, managers, trades unions, complainants, investigators and HR staff mentioned this as a concern especially when the latter were subtly lobbied to influence outcomes or even pressurised to withdraw complaints. This last point was not raised in a way to generate separate enquiry but we heard enough to suggest that a change in the way that complaints were received and dealt with would be helpful. When a complaint is made, an individual can - unless care is taken - feel bullied about withdrawing or changing the specific details. We are aware that you would not welcome such an outcome.
68. We sensed a high bar before action was always taken to deal with matters. We understand why but we also heard that it was the employee raising the complaint in the first instance that felt that they received the most criticism. Again, this was a significant point raised by HR Business Partners.
69. Of course, the long-held principle of innocent until guilty is important but the point here is about the way that a complainant is received and dealt with.
70. A further matter arose in discussion with Managers, Investigators and Business partners concerned the need to identify the desired outcome from the complainant at an early stage. Without this, expectations about conclusions would not be as well managed as they might be. We would suggest that this is a routine question raised and recorded at the outset.

Acceptance of non-written complaints

71. We raised this in earlier reviews as one of the potential changes to your policy. ACAS guidance suggests that policy might welcome an informal complaint as a precursor to more formal action. Of course, there is a need for such a matter to eventually be put down in writing - to steer any investigation - but we would suggest that this could be undertaken as an early triage process rather than awaiting an actual written complaint from a complainant.
72. Again, we heard of some instances in which an over reliance was placed on the need for a written complaint rather than a discovery of the issues that lie behind the situation. Some feedback talked about the need to fill out forms rather than sort out the underlying issue.
73. We would respectfully suggest that the very act of committing to writing might deter some complainants from coming forward. We know that this would not be your  intention  or  desire  but  we  believe  that  a  different  approach  to  written complaints - especially in the early five-day fact-finding period - might serve as a way of enabling early intervention. After all, the aim of this process must be to change an outcome or perception rather than simply to adhere to a process.

Safeguarding

74. There were questions raised about the lack of compatibility between the general Bullying complaint procedures and the safeguarding process. There were also concerns about the seriousness of safeguarding issues and a view that these might be handled solely by the safeguarding unit.
75. We are non-committal on the need for separate investigation so long as issues are taken seriously, reviewed with vigour and responded to in the appropriate way, recognising that a separate set of actions may be required if the safeguarding issues raised are well founded.

Conclusions

76. In sum, we conclude that you might wish to consider:

1. The definition of Bullying and Harassment be further examined with a view to a fuller range of behaviours considered inappropriate to be included beyond that presently drafted; and
2. Altering your approach to complaints by starting from a point of belief rather than perceived resistance; and
3. Confirming the complainants desired outcome at the outset of receiving a complaint; and
4. Accepting complaints verbally; and
5. Introducing a new triage system - see later in this report.

Support

77. We heard about the type of support offered and how this operated both by the appointment of designated support individuals and the Employee Assistance Programme support. It was apparent that in some instances such help has been real and helpful but in many others' cases, the same could not be said.
78. In  our  conversations  with  complainants,  TU's  and  Managers,  we  heard  of instances in which individuals could easily feel isolated, alone and placed in a type of quarantine. Generally, this was not universally said about complainants - though we did hear some instances in which - the help as not as real - as might have been expected but more about respondents and witnesses.
79. This was a matter raised in our previous report and we are aware that you have worked hard to put support in place. But as one individual described it, it feels like someone is going through a checklist and ticking their boxes rather than listening to what is required. Another suggested that I am telephoned at the same time every week but I am not convinced that my answers are heard as nothing ever happens as a result. Overall, HR Business partners suggested that the support in place is often not as good as it should be.
80. The upshot of this is that we believe that a duty of care to employees is better given if  support  is  offered  to  all  involved,  including  complainant,  respondent  and witnesses and possibly even the overall manager. We do not believe that such needs to be onerous or overly heavy but in short, we believe that you might need to do more, along the lines of the following:

1. For the complainant - appointment of a buddy who regularly checks in with the complainant, supports them with any welfare support and acts as a go-between with management and investigator as necessary. Such support to be given throughout the term of the complaint, investigation and conclusion and for a defined period following; and
2. For  the  respondent  -  like  (a)  above  except  the  support  ends  after  the  conclusions  are determined; and
3. For  witnesses  -  support  from  a  HR  individual  during  the  period  of  witness  interview, investigation and attendance at hearings; and
4. For investigators - as per current from the CMU.

81. Interestingly, a good level of support seems to be in place - quite rightly - for those who are suspended from duty. That type of support should be more widely available to those involved in these types of complaint.
82. The support available from AXA was heavily criticised as being too remote and too vague as well as difficult to access. There seems to be a mindset to resist and close rather than to welcome and offer help and assistance.

Conclusion

83. We conclude that there is some work for you to do here. It is an important part of  an  effective  policy  and  we  would  recommend  that  you  give  some consideration to developing a support scheme along the lines of that described here.

Mood and culture

84. It would be impossible to assess this aspect of your employment policy without touching upon the underlying and prevailing culture. In recent years, you have worked  hard  to  determine  a  new  and  commonly  understood  organisational culture and to transmit this through the organisation.
85. You have done so much more than simply state your requirements but it is our experience  -  and  Jersey  is  no  exception  -  that  unless  this  is  frequently communicated and engrained, an initiative to determine values can quickly be forgotten. Part of this relates to the translation of organisational values into a set of managerial and all-staff behaviours.

Values

86. Some years ago, you invested heavily in a new set of Values and a programme to ensure that associated behaviours were properly understood by managers. Much that we were convinced that a good general awareness and understanding of the Values existed, we were rather less compelled that managers understood how values translated into a prescribed set of behaviours and expectations.  
87. All the groundwork for this has been laid some years ago but we sense that constant  and  regular  reminders  about  these  are  required  to  engrain  it  into managers at both senior and middle levels. And in the case of behaviours, we would suggest that a simple list of behaviour expectations - and proper briefing and training - would go a long way to addressing the matter.
88. The points concerning Jersey wide Values and behaviours were made with some vigour by HR Business Partners. To quote one Business Partner it feels like any other business matter rather than an engrained set of dos and don'ts. Another said that the words were good but there is not enough belief and confidence that matters will be dealt with. In other words, more preventative work is required as well as regular signals from the top.  
89. One aspect of this concerned behaviours that unintentionally become licensed and authorised. In other words, the unchecked behaviour of one manager can easily become - and we heard instances of this - the acquired and authorised conduct of another. We hear occasions of this when the defence of manager encouragement or example was cited as the reason for a particular behaviour.

90. Whilst it is the case that behaviours may have changed, we were struck by the extent to which managers and HR Business partners felt that many managers remain who simply do not get it. Or believe that they are exempt and the values and rules do not apply to them.
91. In one or two cases, it was suggested that a different set of rules apply to locals from those that have travelled to the island to work. We carried out no work to validate this viewpoint but it would be worth bearing in mind in future iterations and interpretations of the policy. As examples, we learned of one case in which a manager was placed on a fourth warning for his behaviour.
92. In another case, we heard of an extra layer of protection put in place due to the respondents' skills and longevity in post. Additionally, we heard of many instances in which the action was taken to move an individual around - especially at middle and senior levels - rather than tackle the underlying issue head on.
93. One focus group was very powerful when one of its participants suggested that it was easy to be protected on the island - either by way of skills or superiority. Education and a commitment to root out poor behaviour is needed as well as more mediation and restorative processes.  Such a view is difficult to overcome on an island where communities and people are so close knit. And it is also the case when so many come to the island to work - and in some cases to plug skills gaps - that serious action to deal with inappropriate behaviours can be complicated by such issues.  
94. On a separate but not unrelated matter, Investigators expressed an opinion that relationships, professional reputation and longevity of service were all matters that unduly influenced outcomes.  
95. Put simply, bullying is bullying and whatever the implications of dealing with it, such should not be compromised by issues that have no real connection other than to complicate resolution and effective remedial action.

Difficult conversations

96. Put simply, an ability for a manager to hold a difficult conversation - when necessary - to discuss unsatisfactory performance or conduct - should be preserved without fear of a complaint about bullying. Anything that is suggested here should not be interpreted as an endeavour to discourage honest and truthful conversations about unsatisfactory performance. Quite to the contrary. Yet it is probably the most common reason for an individual to pursue a complaint.
97. Our fieldwork identified examples of instances when a complaint has - wrongly - stalled such conversations or overcome the need for it even though a charge of bullying was unsuccessfully pursued. Regrettably, it is the case that many employees will lodge such a complaint even though a manager was fully justified in taking steps to deal with ineffective performance. By the same token, we also heard of cases where an overzealous pursuit of performance improvement was inappropriately pursued and a successful claim of bullying upheld.

98. Of course, this is a difficult area but we believe that with proper triaging of complaints and increased investigative awareness, such matters could - in most instances - be rooted out at an earlier stage. We return to the subject of triaging later as a way of doing so but we conclude here that this would be a means to enable difficult conversations to be held.

Banter

99. This - as well as a concern about micro aggressions - came up a surprising number of times as an issue that fed complaints of bullying. It is hardly a new area but concern was expressed that what may be fun to some, can be hurtful and harmful to others as well as implying cliques and the like and negatively informing your organisational culture. Nationally, there is enough Employment Tribunal traffic and claims which feature an issue about banter to suggest that you may need to re-express your warning to managers to desist from contacts and conversations that can be misread.

100.  We do not suggest that you need to be overly reactive to the matter but in any

statement about values and behaviours, it would be as well to point out and restate your position on the subject.

Leadership Training

101.  Initially, we were led to believe that leadership training - including top up

reviews - was routinely provided. It later transpired that this was not the case and what is provided is not mandatory. The nature of some feedback - especially in Education and Health - was such that this may be an area demanding some intervention and investment.  

102.  We do not suggest that every manager requires it though we do suggest that a

short biennial or triennial top up review would be time and money well spent.  

Conclusion

103.  In sum, we suggest that you may wish to consider:

1. Drafting a new set of behaviours fully laying out your requirements and expectations of managers; and
2. Reminding staff of the need to desist from careless and inappropriate banter; and
3. Reviewing the content and mandatory nature of regular leadership training; and
4. Issuing guidance that specifies a tariff of sanctions and outcomes to avoid undue matters influencing outcomes; and
5. Introducing a new triage system - see later in this report.

Incidents

Early resolution

104.  We have been very impressed by your endeavour to introduce a five-day fact

find as a pre-cursor to an investigation. We believe that this has potential to be developed further and act as a genuine way of speeding up and offering earlier resolution. We have also been very impressed by your efforts to offer earlier restorative solutions in the form of mediation and the like. The ability of mediation to settle differences can never be understated and has a quick and lasting ability to bring about resolution. You have worked hard to introduce mediation as a means of early resolution and we think there is scope to expand this further.

105.  We  noted  some  scepticism  about  mediation  particularly  from  the  trades

unions. We think that there would be some benefit in talking to them further about the instances in which mediation can have a positive effect and even training some TU officials to become mediators.

106.  We did pick up some misunderstanding about the language of mediation,

almost as if it were a remedial matter. You might wish to consider this but in general, the level of support for mediation and other early resolution ways was welcomed and respected. We were very impressed by your concept of ten-day resolution panels, although this existed for grievances only. We think that this may have scope for expansion.

107.  Some managers and TU representatives suggested that tendency still existed

to jump straight to investigation. We must say that The CMU have undertaken a lot of work in this respect and encouraging good use of the five-day factfinding period and fourteen-day period, referred to earlier in this report. It seems that not all understood the existence of these provisions though or used them. Their view was that a greater range of options - at an early stage - would be welcome. It is worth restating the existence of these early resolution provisions.

108.  We also remain of the view that a slightly longer period be allowed before a

complaint is formally lodged and during which a range of potential options - as follows - might be explored. The principle here is - as one manager put it - to undertake fewer investigations better.  

109.  In  essence,  we  conclude  that  existence  of  the  early  resolution  period  be

recommunicated and restated - we have a view that a ten - rather than fourteen - day period upon the receipt of a complaint being triggered and during which one or more of the following takes place:

1. A triage system - we suggest - located in the CMU - assess a case and determine its potential level of seriousness and whether an investigation should be triggered with immediate effect; or
2. A five-day fact find - be commenced before (a) takes place; or

3. An immediate mediation - if all parties agree - take place; or
4. A meeting between manager and complainant - umpired by a member of HR staff - be attempted; and
5. A resolution panel be appointed - and their role be expanded - beyond grievances.

Resourcing of complaints and the CMU

110.  We were concerned that the CMU were only routinely aware of cases that were

either processed to them via NAVEX or which were referred to them by departments. We heard of instances in which departments seek to consume their own smoke. We were concerned by this as it had an ability to mask a situation especially if departments had a more serious situation. We also heard of some instances in which referral had been made to the CMU simply to pass the problem to somewhere else as we don't know what to do to resolve it. We recommend that all cases be formally notified to the CMU. It is not that they will deal with all cases but that departments will continue to deal with some themselves, albeit under prospective CMU oversight.

111.  There were several comments about the importance of more involvement of

HR in the process as some managers appeared to want to keep complaints within their unit and under wraps. A few were described as wanting to brush things under the carpet at times. Where HR were involved, there was a much better understanding of the process, a sincerity about the need to seek resolution and a confidence in the main part of an independent and objective perspective.

112.  We understand that there are resource limitations within the CMU, but we felt

that a more accurate picture of the full situation - and more control - could be maintained if the CMU held responsibility for the oversight of complaints and were accountable for such matters.

113.  Some concern was heard - interestingly in pretty much every group that

suggested that HR struggled to be independent and their interest can sometimes be emotional rather than disconnected. The concern was about local HR resources. We did not pick up any evidence to substantiate such a view but again, perception can be equally concerning and our view that the CMU oversee all complaints would be an effective way of overcoming this.

114.  We were interested by the fact that we were unable to source a composite report

of all cases across the States. Our reports were either sourced by details of those cases managed by the CMU or by departmentally sources information. Our observation of the latter was of varying quality, accuracy and detail.

115.  Of course, our suggestion does not mean that the CMU would personally

process itself all complaints and might direct departmental resource to handle such, under their direction. But the important thing is that the CMU can track and account for every case, rather than a section of them as they do currently. If the triage system was in the CMU, they could either:

1. Appoint their own resource to investigate; or
2. Direct a departmental resource to investigate their own or more likely a colleague department under CMU oversight and supervision; and
3. Maintain complete oversight and control over progress and intervene if a case is taking too long to resolve; and
4. Regulate findings and enable consistency of approach.

116.  Of course, the CMU with its current level of resources could not carry out such

work without more staff. We believe that you could do this in a no-cost way by a series of year-long secondments from departmental HR teams to enable this. This would  have  a  double  benefit  in  generating  a  developmental  opportunity  for departmental HR staff to acquire new skills and experience which they could usefully  take  back  to  their  home  departments.  However  sourced,  we  would recommend this as an effective way of improving the current situation.

117.  In sum, we conclude that you may wish to consider:

1. Restating of the existence of a fourteen-day pre-complaint period during which a series of options might be contemplated and transacted; and
2. Consider reducing the fourteen-day period to ten days; and
3. The processing of all complaints via the CMU; and
4. Increasing  resources  in  the  CMU  possibly  by  way  of  a  series  of  secondments  and attachments from departmental resources.; and
5. Setting up of a proper triage system and structure to filter complaints and determine route of handling.

118.  Our discussions with HR staff, managers and trades unions suggest that this

would be an initiative well supported.

Investigation

119.  The investigators with which we met were an impressive group, committed to

their task and with differing skills and backgrounds. They were thoughtful, aware of their responsibilities and supportive of improvements that might be possible. We believe that you have come a long distance since we last reviewed this matter in the way that you have built a bank of investigative staff. The fact that it is a mix of current staff as well as those who are former employees and who are brought into carry out this function and of course - in some cases - the appointment of external investigators is a very good idea and is working well.

120.  We  also  liked  the  model  investigation  template  that  you  have  developed

although the investigators had mixed views about it.

121.  Further our review - albeit of a low number of cases - suggested that the

investigation was carried out thoroughly and comprehensively.

122.  Much that we liked what we saw, we did still note some cynicism - especially

on  the  part  of  some  trades  unions  who  expressed  views  about  investigators concerning impartiality, skill levels and understanding of the subject matter. Our own observation was that such matters were - so far as we could see - unnecessary. Undoubtedly, there will be mixed ability amongst the team of investigators but we saw enough to suggest that in the main, they were a skilled and capable group of staff.

123.  But of course, perception is nine-tenths of the rule and it is important to note

that level of scepticism therefore, rather than simply dismiss it, even though we saw no substance to the matters that generated such a view.

124.  These are general comments but the issues that we heard about investigators

were entirely predictable. In general terms, the current staff who undertook investigations as an addendum to their substantive work were generally regarded as taking inordinate amounts of time to complete inquiries and draw long on their work. Some managers admitted a tendency to gravitate toward certain named investigators - an inevitable consequence of maintaining a part time pool of such individuals.

125.  The former staff who now undertake investigations were regarded more highly

but concerns were raised - by the Trades Unions - about their currency and familiarity. None of this caused surprise or undue concern. We heard positive views from all about the organisation that you use for external investigations.

126.  Frankly, there is little that you can do about the perception of investigators

other than to manage it. But from our perspective, there was little to cause us concern other than - perhaps - a need to constantly recruit to the group and to keep their skill levels refreshed and up to date with new techniques et al.

127.  We also heard some interesting details of investigations carried out by two

individuals. Certainly, existing investigators were keen and appeared to push this. Other than as a training or support tactic, we were unclear of the real benefit of this and of course, it thinned the resource pool.

128.  It was not a major issue, so we did not explore it further though it did highlight

an idea about a colleague investigator upon whom thoughts and conclusions might be bounced.

129.  There are three matters that might benefit from your intervention. The first

relates to the need to keep complainants and respondents informed of progress. This theme was raised in pretty much every group. It is not that much is required beyond a simple email or phone call but for both complainant and respondent, it is possibly the most distracting matter on their mind and so a quick message - even if it to say there is no progress - is important.

130.  The second matter is the principle of balance of probabilities - an important staple

in employment law. Of course, the search must be for hard evidence but the true requirement is to establish a lower baseline of balance of probability, a principle that may need reminding across the investigative group.

131.  The third matter is that investigators need to look at matters broadly as well as

specifically. Sometimes, a broader assessment might change the mindset about a specific complaint or vice versa. Both Managers and trades unions were concerned that sometimes, an assessment could be narrowly based.

Conclusions

132.  In sum, we concluded that:

1. Your endeavours to appoint a broader pool of investigators had been successful and should be continued; and
2. The investigative template might be developed further to - more formally and routinely - assess the contextual and broader setting in which the complaint is founded; and
3. You  should  be  alive  to  the  perception  that  some  investigators  were  not  regarded  as independent and able to resist pressures placed upon them. A greater level of supervision and oversight may be a way of overcoming this; and
4. You should require investigators to prepare and maintain an effective communications plan with their main players; and
5. You might wish to undertake some training with investigators to fully understand the principle of balance of probabilities.

Timeliness and communications

133.  No surprises here - all commented on stretched timescales and delays. Frankly,

the ability to pin people down for interviews is always difficult - especially witnesses, sickness and annual leave - which always negatively influence these matters being carried out - as would be ideal - in double quick time. Sometimes, the delay in securing information or validating it takes so much longer than anticipated. It is always too long and often - but not always - for good reason.

134.  There is a special issue that exists in education and pursuing matters during

non-term time which - inevitably - seriously cause delay and obfuscation.

135.  Nearly all this can be anticipated and so long as investigators are diligent and

honest  about  timescales  and  their  communications,  improved  liaison  with complainants and respondents can overcome most issues. But the one area that emerged and about which we did not anticipate delay concerned commissioning managers and inbuilt delays in them agreeing terms of reference. Often, we heard about senior managers needing to intervene because a commissioning manager was delaying matters.

136.  We believe that the use of a period to identify early resolution would be an

effective way of overcoming some of this. We also believe that formal time periods should be built into the early process for sign off on such matters.

Conclusions

137.  In sum, we concluded that:

1. Delays  in  carrying  out  investigations  are  inevitable  but  it  would  be  helpful  to  be straightforward  and  honest  about  this  in  any  literature  about  the  process.  Effective communications  will  overcome  most  issues  and  investigators  should  be  charged  with ensuring meaningful contacts with all parties who are the subject of their works; and
2. Consideration be given to setting a formal period be set for drafting and agreeing terms of reference by commissioning managers and a quicker preparedness to escalate should this be breached.

Roles and responsibilities

138.  Our assessment is that the role of the Case Management Unit needs to be

developed and more rigorously understood and communicated. It is not helped by the fact that they lead on some but not all complaints and so there is some criticism that comes their way unduly and unjustified.

139.  We believe that all complaints should be notified to the CMU. Many will

continue to be managed within the department rather than moved to the CMU. But the extent of the level of oversight will be a matter determined within the CMU. As expressed earlier, our view is that their role should be developed. Such would  enable  greater  control  as  well  as  a  full  picture  of  the  situation  to  be developed.

140.  Principally, the outcome of the foregoing paragraph is to generate far greater

data and intelligence about mood and organisational culture. The desire must be to use the intelligence generated by conclusions about complaints and the like to influence and determine change. Much that we might be convinced by the quality of work taking place on individual complaints, we were less impressed that the organisational intelligence that such complaints generated, was being translated, analysed and used to assist the organisation more strategically.

141.  One or two expressed views about bureaucracy within the CMU. We were not

especially aware of this or at least what we saw, we would regard as reasonable. Perhaps,  the  issue  was  best  covered  by  the  need  for  every  complaint  to  be translated into writing - not the easiest task - and a matter about which we have commented earlier in this report.

142.  The level of casework is such that we have a view that the CMU is under resourced. The increased workload that we float as an idea in this report is such

that an increase should be contemplated, if not in real terms but in a series of year- long attachments and secondments form different parts of the States.

143.  On a separate matter, we heard some concerns about individuals appointed to

panels. It is obvious that all should be independent and impartial but we listened to some reports of inside information and personal experiences being factored into decisions, rather than a truly independent assessment of the facts. It is also obvious that those on panels should act professionally and not allow personal knowledge or relationship issues to affect their input or judgement.

144.  We are aware that Panel training is offered - it might be that it needs to be

developed to ensure independence of contribution and care taken to ensure that all previous knowledge and experience of a department is declared. We also suggest  that  panel  Chairs  are  in  all  cases  appointed  outside  the  relevant department.

Conclusions

145.  We suggest that you may wish to consider:

1. An increase in the - responsibilities and resources - in the CMU; and
2. All complaints to be processed via the CMU; and
3. The way that panel members are appointed and the need to ensure impartiality; and
4. Panel  Chairs  from  outside  the  relevant  department  be  appointed  to  ensure  as  much transparency and independence as possible.

Decision and post incident

146.  This area was the most confusing for participants. They were not sure what

they should expect in terms of being kept informed about the progress of the investigation,  most  felt  they  were  not  informed  adequately  both  during  the investigation and afterwards. As one complainant described it, I was not informed of the outcome, the person came back to work resumed their usual behaviour and now there has been another complaint against them. I wanted HR to be invited in to help us but managers were very against this.

147.  An individual making a complaint does so - usually - to bring about lasting and

sustained change. We were surprised therefore to learn that there is no follow up at say three, six or twelve-month points to check that conclusions that emanate from hearings - and by this we are not referring to disciplinary sanctions but more to side recommendations - are implemented. More important, there is no follow up with complainants to check that the underlying misbehaviour that informed the complaint in the first place, has stopped or altered.

148.  It is a commonly known fact that an individual is rarely persuaded to make a second complaint and so behaviour that may be condemned in a complaint may,

left unchecked, be repeating itself. Quite apart, it is a good employer that follows up on the matter to ensure that a situation has improved.

149.  We were left in no doubt in all our conversations that the matter is regarded as

closed  after  the  delivery  and  implementation  of  conclusions.  We  would respectfully  suggest  that  a  periodic  check  with  the  respondent  would  be  a constructive and inexpensive way of checking that the whole process of pursuing complaints has generated the desired change and the respondent is well and content with how matters worked out.

Conclusion

150.  We recommend that some form of routine follow up with the respondent

should be built into your process.

Management Information

151.  There are two principal sources of information - Navex and SharePoint. Both

generate good information and we were impressed - after some difficulties in accessing them - by what we saw and how they are utilised. The quality of that information is not - universally - matched in all departments. Some is good but some was surprisingly patchy. One HR Business Partner stated that we produce the information but nothing ever happens with it. Another Business Partner added that the same goes for exit interview data - we could do much more with it all.

152.  The value of good information about this subject is three-fold. First, it serves to

track cases and their progress. Second, it provided information to senior leadership about the rate and content of complaints and third, it provided a basis for analysis to test organisational culture and the mood of staff.

153.  We learned of examples of the first two. Some departments are better than

others and practice is very good. We were especially impressed with the quality of information and monitoring in Schools and Justice. But there are some areas where the processing of this information and its presentation to senior leadership needs review and improvement if they are to be respected for taking these matters seriously.

154.  We were not impressed by the third of the matters listed above. Data may be

presented but there appears to be little or no analysis of the information that enables you to form judgements about the scale of the issue. As such, much that we have a positive impression about your processes and the improvements that you have made as well as the upkeep of case data, we believe that the quality of any analytical and comparative work is not at the same level.

155.  In other words, the analysis of the data that you have and its use as strategic intelligence about organisational culture needs to be developed. In this sense, the data that you secure via tracking of case outcomes, exit interviews, the be heard survey is great intelligence that is too valuable not to analyse and use to improve

staff relations, organisational culture and your reputation as an employer. Such should be a routine consideration for each departmental leadership team as well as the most senior Chief Officers group.

Conclusion

156.  In many ways, this is one of the most important outcomes of the review. It is

a lost opportunity to temperature check the organisation and staff mood if this data is not analysed, reported and accounted for. We believe that there is much to be gained by doing so.

High level complaints

157.  This was a line of enquiry added to previous work. We do not need to go into

the reasons why it was added as, frankly, such reasoning was plain to see. But it is interesting that both senior officers and politicians mentioned it as a matter worthy of  examination  and  a  relationship  that  might  easily  deteriorate  -  in  certain circumstances - into one of disagreement and strife.

158.  We should stress that both parties did not anticipate a sudden deterioration or

circumstances to warrant such a view but both were aware that the outcome of such - if it happened - can be fatal.

159.  At the level about which we are discussing here, it is difficult to draft any

process that might better safeguard the relationship or be the basis of rebuild if it fell off the rails. There are so many factors that determine a good relationship - understanding of each other's roles and responsibilities, respect for structures, clear  delegation  and  demarcation  lines,  changes  in  political  direction  and leadership. But it is also the relationship that is public and fatal when it goes wrong that it is proper that both parties invest in a process that can find common ground and rebuild it when matters go awry.

160.  To their respective credit, both politicians and senior officers recognised the

potential for fall out and the limited number of available options to overcome such difficulties when they arose. Similarly, both wanted to establish a basis upon which the prospect of fallout might be minimised.

161.  We were provided with a copy of the code of conduct. Such was clear and

provided much of the wherewithal to clarify lines of demarcation. But the fact that matters go wrong sometimes also means that a process to assist in the most serious of cases should exist.

162.  Some felt that the level was such that any type of process failed to respect the

type of issue that underpinned such fallout. Some commented on the public nature of both fall out and remedial action, if required. Frankly, some thought it plain daft to contemplate.

163.  But others - and on careful reflection - we agree, felt that benefit may be derived

from having in the background and at the outset of a breakdown in relations, a confidential mediation type process. We suggest that this might be triggered by either party and referral criteria be developed to enable proper cases to be referred.

164.  It is clearly not appropriate to route all matters there as just occasionally, by

reasons of gross misconduct or genuine poor performance, that such process may circumvent other more appropriate resolution routs being pursued. Such a process would  require  careful  drafting  and  discussion  with  both  senior  officers  and politicians and the Commissioner for Standards but we would commend the introduction of such a backstop as a helpful and constructive insurance for all parties.

165.  After all, the impact of the alternative can be expensive and have far reaching

implications not just for the parties involved and their families but also for the organisation and your residents.

166.  Some might say that The Commissioner of Standards carries the responsibility

for  dealing  with  such  matters.  And  if  the  matter  is  so  referred,  then  it  is immediately public and subjected to a prescribed process. We believe that an alternative and more private process may be helpful to sit alongside this.

167.  If this requires legislative change, then so be it except we would hope that with

the cooperation of all parties, that an informal alternative based on mediation might be both practical and helpful.

Conclusion

168.  We recommend discussions with the Commissioner of Standards with a

view to the setting up of an informal mediation process.

Stop, Start and Continue

169.We carried out an exercise to establish actions that individuals would like to stop

- because they are inappropriate and impede your operations or would continue - because it works and is an important component of what you do or would start. The highlighted lines are those raised most often.

Recommendations

170. We have resisted the temptation to set out specific recommendations. So much of

your  work  is  good  -  and  some  of  it  best  in  class  -  that  a  further  set  of recommendations does not feel to be helpful. Instead, we have listed at the end of each section above, some thoughts and ideas that you might wish to consider in order to continue to make progress in this field.

171. In particular, we draw your attention to:

1. Paragraph 76 - Making a complaint

2. Paragraph 83 - Support
3. Paragraph 103 - Mood and Culture
4. Paragraph 117 - Incidents
5. Paragraph 137 - Investigation
6. Paragraph 145 - Roles and responsibilities
7. Paragraph 150 - Decision and post interest and follow up
8. Paragraph 156 - Management Information
9. Paragraph 165 - High level complaints.

172. So far as we are concerned - we regard the following as the most significant

conclusions:

1. Paragraph 76b
2. Paragraph 83
3. Paragraph 103a
4. Paragraph 117e
5. Paragraphs 145a and 145b
6. Paragraph 150
7. Paragraph 156.

Acknowledgement

173.We are grateful for the help and support given to The HR Lounge Ltd during this

assignment  by  Lesley  Darwin,  Chief  People  Officer  and  Colette   Wilson , Consultant, CMU. We were also greatly assisted by Patrycja Zakrzewska and Lara Zambon.  They  were  all  exceptionally  helpful  and  responsive  in  requests  for information and the like. We are grateful for the way that they assisted us.

174.We are also grateful to staff - complainants, managers, HR Business Partners and

HR staff and the Case Management Unit and TU officials who participated in the interviews and focus groups and willingly assisted us with our inquiries.