Service Complaints

Service Complaints 

          Introduction

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.  

If they want to bring a claim in the Employment Tribunal, they MUST make (and not withdraw, or fail to appeal) a service complaint.

The service complaints scheme 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 new Service Complaints Ombudsman was appointed to replace the former Service Complaints Commissioner. Both the Commissioner and, now, the Ombudsman, have repeatedly stated in every single annual report they have produced that the service complaints process is neither fair, effective nor efficient for armed forces personnel. 

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. For those that wish to bring a claim in the Employment Tribunal, they effectively have to litigate twice, once in the service complaints system and once in the Tribunal. By the time they get to the latter, they are worn down and exhausted, not least because the service complaints system lacks many of the basic procedural safeguards and measures that guarantee fairness and equality of arms, that they might find in the Tribunal. 

          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).   That is then sent to the Single Service Secretariat. The Secretariat will assign the complaint to a ‘Specified Officer’ (SO) who will be, since the reforms of 2022, be someone outside of the complainant’s chain of command.  (It has always been the case that if the CO or the CO’s immediate superior was implicated in any way in the complaint, the service person would be directed to their single service secretariat for advice on who to send the complaint to. Alternatively, they could 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.

However if the claim concerns a complaint of discrimination, victimisation or harassment (ie something that could be the subject of an Employment Tribunal claim), then the time limit is 6 months.

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.  For example, if a person has been suffering from mental health problems, or the subject matter is self-evidently extremely sensitive (such as arising from a sexual assault), or there are other good reasons which might mean the person needed to get help or took longer to take action, it might be ‘just and equitable’ to allow that person additional time to make their complaint. 

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) can be appointed by the chain of command. A complainant has the right to propose an alternative. 

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 – called a Decision Body – 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. The Ombudsman repeatedly reports that this deadline is not met. 

If the service person does not agree with the outcome of the service complaint, there is a right of appeal.  Since 15 June 2022, this must be lodged within just 2 weeks of being notified of the decision. The complainant must also set out the grounds on which they wish to appeal. The available rounds are:

1. there was a material procedural error. This is an error in the procedure followed that was relevant to the outcome of your complaint. A minor procedural error which did not bear on the outcome of the decision will not fall within this ground.
2. the decision was based on a material error as to the facts. This means that the decision was based on a mistake of fact which was relevant to the outcome of your complaint.
3. there is new evidence (meaning evidence which was not available, and could not with the exercise of reasonable diligence by the complainant have been made available, before the decision was made), and it is likely that the decision would have been materially different if the new evidence had been made available to the DB.

These new grounds are restrictive and complex. Coupled with the new deadline, they are clearly designed to make it harder for appeals to be brought (but were sold by the MoD and Chief of Defence People on the grounds that they would reduce delay overall which was better for service people). The potential impact on any Employment Tribunal claims depending on the service complaint is serious and may raise important and urgent questions of access to justice (and the MoD’s compliance with Article 6 of the European Convention on Human Rights). If in doubt, seek urgent legal advice.  The Ombudsman (see below) has the power to review a decision not to allow an appeal to proceed. That decision needs to be brought to the Ombudsman’s attention within 4 weeks of it being made.

Thereafter, if an appeal is accepted, a service complaints appeal panel 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, including discrimination complaints, an “independent” person must be appointed to the appeal body.  There may be an oral hearing. 

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 relevant JSP is JSP 831 and can be accessed here:

https://www.gov.uk/government/publications/jsp-831-redress-of-individual-grievances-service-complaints

          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. 

Following the threat of judicial review brought by a sexual assault survivor, the MoD agreed to seek an independent review of whether there was a need for an independent system for dealing with service police complaints. That independent review confirmed that there was, and the MoD accepted that recommendation. A Service Police Complaints Commissioner is in the process of being established at the time of writing.

          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:

1. 1. Refer the intention to make a service complaint to the single service secretariat on behalf of the person concerned;
   2. Review a decision by the specified officer not to accept a complaint for investigation (ie review an admissibility decision);
   3. Investigate allegations of undue delay in the handing of a service complaint (at any time in the process);
   4. Review a decision not to allow an appeal to proceed – the decision not to allow an appeal must be brought to the Ombudsman within 4 weeks;
   5. 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; or she can investigate maladministration in the handling of the complaint. That appeal needs to be brought with the Ombudsman within 6 weeks (or outside that time period if ‘just and equitable’ to extend time – see above on the kinds of circumstances that might be covered there). 

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 us 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; service complaints teams have in the past refused 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 inside units; 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. Recently, the MoD has made this already dreadful process much harder by reducing the time limit for appealing a complaint from 6 weeks to just 2, and introducing restrictive grounds of appeal that the CMJ is concerned may result in meritorious appeals being dismissed, with serious implications for Tribunal claims and access to justice.  We wrote to CDP about our concerns, which he dismissed. You can read that correspondence here: Letter to CDP Lt Gen James Swift with reply

These observations, taken from our experience of assisting complainants is reflected in a number of wider pieces of research. The Army’s own 2018 and 2022 Sexual Harassment Surveys recorded that people who complained of sexual harassment reported very poor outcomes. Targeted sexualised behaviours that had caused respondents to feel particularly upset have increased since previous surveys. Such behaviours ranged from unwelcome comments, sexual touching, trying to speak about sexual matters, to sexual assaults and rape. See here for more information: https://centreformilitaryjustice.org.uk/guide/sexual-violence-and-sexual-harassment-in-the-armed-forces/

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 has made a similar point in all of her annual reports. Female and Black, Asian and Minority Ethnic (BAME) service personnel are consistently unacceptably over-represented in the complaints system.  More alarming was the nature of the complaints being made by these groups. Bullying, harassment and discrimination constitute a disproportionate proportion of complaints from BAME people. The Ombudsman has been 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.

The impact of the problem of complainants being put under pressure to withdraw complaints was seen starkly in the case of the late LCpl Joel Robinson who was persuaded to drop a serious bullying complaint and who committed suicide six months later: https://centreformilitaryjustice.org.uk/inquest-into-the-death-of-lcpl-joel-robinson-concludes/

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.

‘Bureaucratisation’:

More generally, we observe a tendency within the service complaints teams to ‘over-bureaucratise’ the entire process.  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.

Delay:

Despite the clear directions set by the Ombudsman, service complaints are still beset by terrible delays. 

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 

1. All complaints against the Service Police to come under the auspices of the Service Police Complaints Commissioner as soon as possible.
2. In cases involving sexual and racial harassment, the ‘central defence authority’ recommended by Wigston in 2019 to be set up, to handle those cases, taking them away from the single services, freeing up time and ensuring experts handle those cases. 
3. The Centre for Military Justice calls for the MoD to commission and publish research into the reasons why so many women and BAME people are complaining, echoing the Ombudsman’s recommendations of the multiple years. 
4. 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.
5. 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.
6. 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).
7. That sufficient numbers of female assisting officers be appointed to assist female (or male) complainants where requested.
8. 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.
9. 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).
10. That a reasonable time limit for appealing a service complaint be re-established. The position should revert to the original 6 weeks.
11. That the restrictive grounds for appeal be abolished.
12. 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.