Any serving or former serving members of the UK armed forces, in regular or reserve service, can make a complaint if they feel they have been wronged in any matter relating to their service including bullying, harassment, discrimination and biased or improper behaviour.
It is not a scheme that is designed to deal with criminal complaints – complaints that are criminal in nature (for example, harassment (including sexual harassment) that meets the definition of criminal harassment, is a police matter and should not be dealt with internally).
A number of changes were brought about in January 2016 to the service complaints process. A new Service Complaints Ombudsman was appointed to replace the former Service Complaints Commissioner. Both the Commissioner and, now, the Ombudsman, have repeatedly stated that the service complaints process is neither fair, effective nor efficient for armed forces personnel.
Matters are certainly improved but there remain serious problems with the scheme. Delay and reports of unsatisfactory outcomes remain endemic. Most complainants that contact us report finding the process unbearable, especially those that have been the victim of sexual harassment.
General information and the process
The service complaints process involves making a formal statement of complaint, usually required to be on a specific template (Annex F). The policy suggests that a service person should send their complaint to the ‘Specified Officer’ (SO) within their chain of command, who will usually be the person’s Commanding Officer (CO). If the CO or the CO’s immediate superior are implicated in any way in the complaint, the service person is directed to their single service secretariat for advice on who to send the complaint to. Alternatively, they can contact the Ombudsman’s Office who has the power to direct that a SO other than the person’s CO be appointed to consider the complaint.
A complaint must be lodged within 3 months of the date of the act complained of. If the act complained of is a continuing act, the person ought to complain as soon as they reasonably can and/or within 3 months of the act or series of acts coming to an end. The time limit is the same for former service personnel.
In most circumstances, if a complaint is submitted beyond the required time limit of 3 months, it will be ruled out of time. However, the SO is able to consider whether it would be “just and equitable” to rule a complaint in time and so allow it to proceed even if it is technically out of time.
Once the complaint is acknowledged, an Assisting Officer (AO) should be appointed (or the person can request a named person to be appointed as AO) to help and support the service person understand the complaints process. It is important to note that an AO is not an advocate. An AO (if not chosen by the complainant) is appointed by the chain of command.
The possibility of resolving the complaint informally in the first instance will be discussed. The SO will then decide whether the complaint will be investigated further and notify that decision in writing. If the SO decides that the service complaint will be investigated, it will be sent to the single service secretariat. The secretariat will appoint someone to investigate and decide the complaint and what redress (if any) is appropriate.
The policy is that 90% of complaints should be investigated and resolved within 24 weeks.
If the service person does not agree with the outcome of the service complaint, there is a right of appeal. This must be lodged within 6 weeks of being notified of the decision.
Thereafter, a service complaints appeal will be arranged, assuming the Defence Council agrees that it may proceed. If they do, it will convene an appeal body. In certain types of case, an “independent” person must be appointed to the appeal body.
It is not possible for the complainant to appeal only part of the complaint – the entire complaint must be appealed.
The appeal body will notify the complainant of the outcome of the appeal.
Thereafter there is a right of appeal to the Ombudsman
The Service Police Complaints process
This is different and even more lengthy. Each Service Police force has its own internal complaints process. In the first instance, a complainant should complain to the professional standards unit of the Service Police force itself. If the complaint is not upheld, an appeal lies to the Provost Marshal of the relevant force. If the complainant is dissatisfied with that outcome, then he or she may then lodge a service complaint and the process outlined above starts from the beginning, with all the attendant levels of appeal. It is only after that process has been exhausted that the complainant may appeal to the independent Ombudsman.
What role does the Service Complaints Ombudsman
play in this process?
The purpose of the Ombudsman is to provide independent and impartial scrutiny of the handling of service complaints. As a general rule however, it is fair to say that she will only become substantively involved at the end of the above, long, internal process. Prior to that point, her powers are very limited.
Anyone who is serving in the regular or reserve Forces, or has recently left, can contact the Ombudsman about matters to do with their service life. The Ombudsman can:
- Refer the intention to make a service complaint to the complainant’s CO and appoint someone other than the CO as SO;
- Review a decision by the CO not to accept a complaint for investigation;
- Investigate allegations of undue delay in the handing of a service complaint;
- Investigate allegations that a service complaint was handled incorrectly;
- At the end of the internal complaints process, she can investigate the substance of a service complaint if the complainant thinks the wrong decision was reached.
The Ombudsman’s findings are not binding, although it is stated that any recommendations made by the Ombudsman will not be rejected without explanation.
There are particular limitations in respect of the Ombudsman’s role in the context of the Service Police. As far as the Centre for Military Justice is aware, the Ombudsman has not investigated any complaints involving the service police, taking the view that she lacks jurisdiction to do so. Her role is essentially that of overseeing a workplace grievance system and not investigating matters pertaining to the Service criminal justice system.
Problems with the complaints system
The following observations are made as a consequence of the reported experiences of service men and women who have contacted the Director for help in relation to their service complaints.
Complaints about sexual and other forms of harassment:
The service complaints system appears to be incapable of dealing fairly with sexual harassment and abuse matters. Allegations of sexual assault must of course always be dealt with as criminal matters, not as service complaints. But a victim of a sexual offence may wish to lodge a service complaint to address matters surrounding the offence itself but which could not form part of the criminal case other than by way of background. For example, if there was a pattern of sexual harassment prior to an alleged criminal sexual assault, this might form the legitimate subject of a service complaint. Or if a CO sought to interfere with the process of investigating the alleged assailant, or failed to ensure welfare support to a victim, this might form the subject of a service complaint.
These cases can be very hard to pursue, particularly without legal help and support. Complainants may be told their complaint is out of time, when there are good reasons to extend time; the service complaints team may refuse to correspond via an appointed representative, and insist on dealing with the complainant him/herself, which can be extremely distressing; staff changes mean that invariably the same person within the complaints team is not working on the case throughout which can be very unsettling; information about complaints is not always treated as confidentially as it ought to be; the tone of some of the correspondence and the approach taken by some DOs can be upsetting and disrespectful with a strong tone of ‘victim-blaming’; complainants may be asked about the same upsetting events repeatedly; and it may be many months if not years before there is a result, let alone an outcome on appeal, with no guarantee of success. Delay is rife. It is only on appeal and only in certain kinds of cases that there is any independent element to the process.
These observations, taken from our experience of assisting complainants is reflected in a number of wider pieces of research. The Army’s own 2018 Sexual Harassment Survey recorded that people who complained of sexual harassment reported very poor outcomes. Targeted sexualised behaviours that had caused respondents to feel particularly upset had increased since the last survey in 2015, for women. 18% of respondent service women reported this. Such behaviours ranged from unwelcome comments, sexual touching, trying to speak about sexual matters, to sexual assaults and rape.
Quite apart from the personally potentially devastating impact of this kind of event on the victim, it is notable that there were very high rates of dissatisfaction recorded with the outcome of the complaints investigation, where the victim had lodged a complaint, both in terms of how well it was communicated to the complainant, whether follow up action was taken against those responsible and the amount of time taken to resolve the complaint. Three-quarters of those who made a formal complaint said that they had suffered negative consequences as a result; and nine in ten service personnel had thought about leaving the Army.
The Ombudsman made a similar point in her annual report for 2017 (published in 2018). Female and Black, Asian and Minority Ethnic (BAME) service personnel are still unacceptably over-represented in the complaints system. They account for 20% and 10% of complaints, respectively, but make up just 11% and 7% of the Armed Forces, respectively. More alarming was the nature of the complaints being made by these groups. Bullying, harassment and discrimination constituted around 45% of complaints from women and around 55% of complaints from BAME people. The Ombudsman was concerned about continued reports from personnel that they have been discouraged from complaining by service complaint handlers, or even advised that doing so could harm their careers.
And the Armed Forces Continuous Attitude Survey (AFCAS) 2017 also showed the real impact on soldiers – with 13% reporting experiencing bullying, harassment or discrimination in the preceding 12 months. Of these, only 10% of those bothered making a formal complaint at all. The most common reasons given for not complaining were feeling that “nothing would be done” (59%) and that complaining would adversely affect their career (52%). That survey also indicated limited knowledge of the complaints system.
We have also observed that there is an absence of female AOs generally to support women (or anyone who would prefer to confide in a female AO) through the process. We note that the Ombudsman’s recommendation that specialist harassment investigators be appointed has been accepted and acted upon and that is very welcome. With specialist harassment investigators on the teams then maybe some of the matters described above may be addressed. However, the service person themselves still needs support and help and this remains lacking. That will not be addressed by the appointment of greater numbers of specialist harassment investigators.
More generally, we observe a tendency within the service complaints teams to ‘over-bureaucratise’ the entire process. The complaints policy alone comes to 135 pages. If a person has part of their complaint upheld, but part of it not upheld, they have no choice but to appeal the entire complaint – so the whole process effectively starts all over again. This has the effect of wearing the service person down and of wholly failing to get to the heart of the problem. It means that even if the heart of the complaint may be upheld, it is packed around so many other smaller matters that have been deemed not upheld as to be considered of less value. This is in part a consequence of the absence of independent, practical support and advice to the service person at the outset. Such an approach leads to vast banks of evidence being obtained to cover all aspects of the complaint, rather than a more sensible, focused, proportionate investigation from being conducted. This approach is in the interests of neither the services themselves nor the complainant.
Despite the clear directions set by the Ombudsman, service complaints are still beset by delay. In her 2018 Annual Report, the Ombudsman expressed her continued concern about the level of delay in the system, upholding 60% of complaints of delay, with only 56% of complaints being dealt with inside the designated target timeframe.
On any analysis, further meaningful reform is needed. These matters are absolutely fundamental to operational effectiveness – if you don’t look after your people, and help and support them if and when things go wrong, their ability to work well is undermined, or they will leave.
The Centre for Military Justice is calling for
- All complaints against the Service Police to come under the auspices of the Independent Office of Police Conduct or similar independent body.
- In cases involving sexual and racial harassment, the Ombudsman ought to be available to complainants as a first appeal stage.
- The Centre for Military Justice calls for the MoD to commission research into the reasons why so many women and BAME people are complaining, echoing the Ombudsman’s recommendations of the past three years which have been ignored by the MoD.
- That those who wish to lodge a complaint should be encouraged to seek independent advice and support and an assurance should be given that service complaints staff will co-operate with and recognise the value of such independent advocacy. With suitably skilled advice and support, this will enable a well prepared focused complaint to be lodged right from the outset and will save all parties – complainants and respondents and those tasked with overseeing them – time and stress.
- For all staff involved in the complaints process to be informed that if a complainant has the help of an independent person (such as a solicitor or other form of advocate) that they are to send all communications via that person unless requested otherwise.
- That a flexible and sensible approach be taken to the 3-month time limit, especially when dealing with matters arising from a criminal allegation (which, by definition will very rarely have resolved within 3 months).
- That sufficient numbers of female assisting officers be appointed to assist female (or male) complainants where requested.
- That a single point of contact be arranged for sensitive or complex complaints that lasts throughout the life of the case, so the complainant does not have to deal with several staff changes.
- That where a complaint arises in the context of an alleged sexual assault, there will be a presumption that the complainant will not be required to be re-interviewed about the sexual assault itself where a statement has already been prepared (either in writing as part of the complaint, as part of the criminal proceedings, or a combination of both).
- That family members (including partners) of a service person who has cause to complain, be given standing to lodge a complaint (including to the Ombudsman), including where the service person is deceased. After her death, the family of Cpl Anne-Marie Ellement tried to make a complaint about the bullying she had described to them before she died and were told they had not standing to do so. Incredibly, this remains the case today.