Standards, Procedures and Public Appointments Committee

Meeting date: Thursday, January 18, 2018

Official Report 445KB pdf

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Sexual Harassment and Inappropriate Conduct

Agenda item 5 is an evidence-taking session on the committee’s inquiry on sexual harassment and inappropriate conduct. I welcome to the meeting Susan Duffy, head of committees and outreach; Lorna Foreman, head of organisational development; and David McGill, assistant chief executive, Scottish Parliament. I invite Susan Duffy to make an opening statement.

Thank you, convener, and thank you very much for the invitation to come along this morning.

I will start with a bit of context. It has always been really important to us that the Parliament is a place where people feel safe, valued and respected. Last year, building on what we had already done, we published a diversity and inclusion strategy, as part of which we have set up networks to allow people to discuss issues and barriers that they might face. We have also set up a women in leadership programme and have published a comprehensive gender pay gap report as well as an action plan for reducing that gap. All of those matters are overseen by what we call our diversity and inclusion board, which is co-chaired by David McGill and me. I also point out that the Parliament takes a zero-tolerance approach to harassment, and our dignity at work policy makes that clear.

Given all that, it was really important to us to react swiftly when media reports of sexual harassment first emerged. Our immediate priority was to ensure that anybody suffering from harassment received the advice and support that they needed, so we set up a dedicated confidential helpline to offer information and guidance on how people could report concerns and on ways of getting further support.

The Presiding Officer also convened a meeting with party leaders, because tackling this kind of behaviour requires us to work collectively and to take a unified approach across the Parliament as an institution as well as individual political parties. At that meeting, all the parties reaffirmed the zero-tolerance approach to sexual harassment.

Although the number of reported incidents of harassment has been low over the Parliament’s lifetime, it is important to find out whether that reflects the actual scale of the problem or a culture in which people do not feel able to report something. As a result, we issued a confidential anonymous survey to everyone working in and for the Parliament. That survey closes tomorrow, and the results will be analysed by an independent company that is undertaking the survey on our behalf.

The next steps will largely depend on what the survey tells us, but we are aiming to publish the survey results and an action plan in March. This morning—indeed, we have just come from the meeting—the Scottish Parliamentary Corporate Body agreed to set up a joint working group to take forward any actions arising from the survey, and we envisage that the group will include Parliament officials, representatives from each of the political parties and Emma Ritch from Engender, who has been invaluable to us thus far. We are committed to taking that work forward and ensuring that we have a workplace where people feel safe, valued and respected.

I hope that that gives the committee some context. I am happy to answer questions.

To set the scene, can you talk us through the process of a hypothetical investigation? What would happen if someone came to you with a complaint?

As you can probably imagine, the processes in the Scottish Parliament are quite complex, because we have a number of different employers in the building, so there are several different routes for people to take complaints. Lorna Foreman can talk in more detail about some of the ways in which we would handle complaints.

If there is a complaint by a member of staff about their employing member, under the contract of employment, that would be raised with the employing member, because that is the route to take under employment law. However, in those circumstances, if the member of staff was raising issues of sexual harassment, for example, the human resources function would be involved and would advise the member to appoint an independent third party to carry out the investigation and deal with the complaint. That is what we have done in the past in those circumstances.

Just to be clear, if a member of staff complained about an MSP sexually harassing them or harassing them in any other way, are you saying that they would contact HR and HR would advise the member? I am not clear on the detail.

Members of staff are employed in different ways. Some have individual employment relationships but others can be employed by two or more members. For staff members who have an individual employment relationship and who experience a form of sexual harassment, under the contract of employment—as with any employer—they would raise the issue with their employing member. In the past, when members of staff have come to us informally and told us about such a situation, we have encouraged them to raise a complaint under their contract of employment. However, where they feel that they are unable to do so, we would seek their agreement to raise the matter with their employing member on their behalf. In those circumstances, we would advise the employing member to appoint an independent third party to investigate and resolve the complaint on the grounds that the member would be too close to it and it would not be an impartial process.

It is important to note that what Lorna Foreman described is separate from the code of conduct, because of the contractual employment relationship. If someone had a complaint against an MSP and they were not a member of that MSP’s staff—if they were a Parliament staff member or a staff member of another MSP—it would be dealt with through the code of conduct. The only reason that the circumstances that Lorna Foreman describes are not covered under the code of conduct is because the code cannot trump employment legislation, which is where the contractual employment relationship comes in.

Would you like me to describe how it would be dealt with in a practical sense?

That would be very helpful.

If the complaint was from someone who was employed by a member and they were complaining about another member, it would be dealt with under the code of conduct. In that situation, they would raise their complaint with their employing member, who would seek advice about dealing with it under the code of conduct. As it stands, under the code, the issue would be raised with the business manager of the party of the alleged perpetrator. The HR function can also get involved in that situation. Under the code of conduct, we would look at conciliation as a first position. However, if the person did not want to do that, or if it was inappropriate given the circumstances, the HR function would investigate the matter, which would then come to this committee to consider.

Would there be a different process if the person making the allegation was an employee of the Scottish Parliament?

10:15  

Yes, that is a different process. The HR function would again investigate, because we investigate all matters relating to complaints that are raised by our staff. That would then go to the corporate body to deal with rather than this committee.

Good morning, everybody. Susan Duffy rightly said that having a proper response to the issue requires a range of actors within the Parliament’s organisation to take an interest. You have talked about the actions of the Presiding Officer, the corporate body, HR and political parties. This committee’s remit is around members’ conduct, so we have to come to the issue from that angle.

Can you say a little more about the different permutations of who might be raising a complaint against whom or about whom, thinking not just about members’ staff and parliamentary staff, but perhaps about members of the public, contractors and other organisations that take part in the work of the Parliament? In terms of this committee’s take on the issue, I am not clear about to what extent a member’s involvement in that range of possible situations engages the code of conduct, as opposed to it being exclusively dealt with by parliamentary bodies other than this committee.

As you are aware, the code of conduct allows for anyone to make a complaint about the conduct of members. The vast majority of complaints from the categories that you have mentioned—members of the public, contractors and so on—would go straight to the Commissioner for Ethical Standards in Public Life in Scotland, who would decide whether a complaint then had to go through the four-stage process that is set out in the code of conduct and in legislation.

There are exceptions. Those involve conduct in committees, which is a matter for the relevant committee convener; conduct in the chamber, which is a matter for the Presiding Officer; and general conduct, which is where we come into the picture. That is the part of the code that comes into play when members’ staff and the staff of the Parliament raise complaints.

There are various different routes and it is quite a complex process, but the three main categories of complaints are those that go to the commissioner, those that are dealt with within Parliament and those that are a direct result of parliamentary business.

If, for example, an MSP’s member of staff was to make a complaint to their employer, the MSP, about something that they had experienced in relation to the behaviour of somebody else—perhaps a contractor or member of the public who was taking part in a meeting or in the business of the Parliament—to what extent would HR or the Parliament’s bodies have a role? Would that purely be a matter for the code of conduct, in terms of how the employer handles the situation and supports their member of staff in resolving the complaint?

Sorry, but do you mean a complaint about the conduct of a member?

No, I mean a complaint about someone who is not employed by a member, so anybody else who is quite legitimately part of the work of the Parliament. For example, it might be somebody attending a meeting or someone from a media organisation.

A complaint about the conduct of a member would go straight to the commissioner and it would be for the commissioner to decide whether the complaint was relevant under the code and should be taken forward.

Sorry—maybe I am not being clear. There are a complex range of situations. If a member receives a complaint from their member of staff about the behaviour of somebody else, who is not a member, is it purely the HR function that would resolve that kind of complaint, or is the member accountable for the way in which they handle the complaint? Is that a matter for the code of conduct?

Yes, that would be a subsequent complaint. That would come after the handling of the initial complaint, which would not be a matter for the code of conduct. If there was any complaint about how the member had supported the person who was making the complaint, in my view that would be a legitimate complaint under the code.

Is there a case for having a single front door—a single point of contact—for all this, rather than that quite complex landscape? If we are all finding it a little bit daunting to find our way through it, I suspect that somebody with less involvement with the Parliament might also not be clear on how to raise an issue.

That was the thinking behind setting up the helpline. The helpline in itself was not intended to be a mechanism whereby people could make reports. Recognising how complex the landscape is, we set up the helpline so that, if someone had an issue, we could guide them to the most appropriate process for them to use.

It is quite legitimate to look at the complexity of the landscape in all the work that we are doing. There are legitimate reasons for it, as there are a number of different relationships in the Parliament, but it is incumbent on us to look at how we can simplify it. Ultimately, our goal is to ensure that, if anyone feels that they have been harassed, we make it as painless and easy as possible for them to report it and to be supported in that process.

I want to talk a little bit about the survey that has been undertaken. How will the results of the survey be analysed? You talked about the results being available in March. Will they be made public?

Yes. We are committed to making the results of the survey public. We want to publish not just the analysis of the survey results, but the action plan that we develop. That is part of the reason for setting up the working group; we want to begin that process.

On how the results will be analysed, we took the decision when we first set up the survey that we wanted to give people confidence that it would be confidential, so we engaged a third-party organisation called Progressive, which is very experienced in the area of surveys, to undertake and administer the survey for us. It receives all the raw data—we do not see it—and it will analyse the results on our behalf. It will send a report to us, which will be for the corporate body to consider, but it has always been our intention to publish the results. We will try to publish those results in March.

If, in the survey, a respondent identifies an individual, what action will be taken in reference to that, given the confidential nature of the process?

We designed the questions to try to ensure that people did not identify any individuals. We wanted the survey to be a means of gathering views on the culture in the Parliament, rather than being an anonymous mechanism to make a complaint. At certain points in the survey, we put in warnings so that people would not identify individuals. However, if any individuals are identified, Progressive will not take that into account when analysing the data and that information will be destroyed.

Last week, MSPs and others received an email saying that there had been “a very good response” to the survey—I think that that was the expression that was used—but that a decision had been taken to extend the deadline to complete the survey by a further week. Can you share with us what “very good” means in percentage terms and, if the return was good, what the rationale was for extending the deadline?

When we set the deadline, we thought that the end of the first week back seemed to be a good point to choose. However, because people were just back from the Christmas and new year break, we wanted to extend the deadline to ensure that people had sufficient time to fill in the survey so we decided to add another week.

We only have an interim response rate at the moment because the survey does not close until tomorrow, but we are nudging over the 60 per cent mark. We have spoken to Progressive to benchmark that. Normally, a return rate of about 50 to 70 per cent for employee surveys is considered to be pretty good. As ours is not just an employee survey, Progressive thinks that what we have at the moment is a good return rate.

On that point, do you have a breakdown that will show the proportion of MSPs, MSP staff and other staff who have responded to the survey? Will that be published and can you give us an idea of which groups have responded in better numbers than others?

When we publish the results, that breakdown will be published. It will correspond with the question in the survey in which people were asked to confirm whether they were Parliament staff, members or members’ staff. The information will not be broken down any further than that, to ensure that we have no issues with confidentiality.

We have an interim breakdown, but I should point out that although it is very easy to get a breakdown of the online survey returns, we have also issued a number of surveys in hard copy to people who, for whatever reason, do not have access to a computer, so the current information only provides an indication. However, so far, we have had extremely high response rates from SPCB staff and members’ staff, and we have had a very good response from members.

I do not want in any way to prejudge the findings of the survey, but what action is being considered in the event that the survey reveals that there have been high levels of sexual harassment in the Parliament?

We are already looking at things such as our dignity at work policy. Albeit that that policy applies to how we deal with issues with SPCB staff, it is referenced in the code of conduct, so members are, in effect, asked to abide by the spirit of it. We plan to identify whether we need to do anything to revise our dignity at work policy. We have looked at it regularly. We established the policy in 2004 and, if my memory serves me correctly, we revised it in 2008 and 2011.

We are also looking at training. If we want to bring about a culture shift, we can do whatever we want with regard to processes and procedures—it is important that we continue to work on our processes and procedures—but we must consider providing training for everyone in the building, so that people have an understanding of the impact that certain behaviours might have on others and of what constitutes harassment. The survey asked about sexist behaviour, and we also want to look at that.

Although we will be guided by what comes out of the survey, we are already thinking about actions that will need to be taken.

To an extent, you have mentioned this but, historically, how often have reviews of procedures been undertaken?

We review our procedures all the time. We want to abide by best practice, Advisory, Conciliation and Arbitration Service codes and changes in legislation. Our current procedures are compliant with all of those. We constantly look to see what we can learn from new policies that are published.

Thank you for joining us. I suppose that you will not be able to answer this properly until you look at the answers that you get back, but based on the phone line activity and the feedback sessions, do you think that the current reporting and investigation systems have been adequate to deal with instances of sexual harassment? Have staff felt confident in engaging with them?

It is difficult to prejudge the results of the survey. That was one of the reasons for including a question on those systems in the survey. As we have discussed, there are complexities around the reporting system, so people might not have felt sure about where to go or what to do.

Although the reported instances of sexual harassment have been relatively low, we are acutely aware that that might be because people have not felt that they could report such instances, for whatever reason. Therefore, it was extremely important to us that we tried to capture that in the survey. We also included in the survey a free-text box in which people could comment on anything else that they thought we should be doing. We want to find out from people who have gone through the process how they feel about it.

The survey is our means of mass engagement, but we will also engage with our staff and others on a more informal basis, in an effort to put a bit more flesh on the bones.

Do you think that the publicity around the issue and the survey will be helpful in focusing minds on what is and is not appropriate, and that it might help people to think about changing behaviour that they might not have considered to be inappropriate in the first place? Is that a possible outcome?

I think so and I really hope so. It is positive that we are shining a light on the matter and trying to do something about it. From my experience in the Parliament, I know that people are actively discussing the issue and thinking about how their behaviour impacts on other people. It is very encouraging to me that it is the subject of a lot of discussion and I really hope that that will continue.

10:30  

The dignity at work policy covers instances in which people might not consider that their behaviour has a detrimental impact. The policy makes it clear that the main thing is not the intent but the impact. It is very much focused on the person who experiences the behaviour. However, there is a job for us to do to raise awareness of that.

We have reviewed the policy in the past but not for a number of years and we anticipate that one of the things that the survey will show up is that people are not as aware of it as we would like them to be. Therefore, there is an exercise to be done to ensure that individuals take responsibility for that and that line managers promote awareness of the policy.

Although the committee is examining sexual harassment specifically, we have spent some time talking about: the dignity at work policy; the diversity and inclusion strategy; staff feeling safe, valued and respected; and zero tolerance towards harassment. Are there wider lessons to learn? Those points would cover all equalities strands. Sexual harassment is on a spectrum that includes serious violence against women. On religious beliefs, there is a rise in the persecution of Christians around the world, for example, but part of that spectrum might simply be discrimination at a lower level—for example, the Government’s statistics last year showed a rise in hate crimes against Catholics. Are there lessons to be learned about how people respect and value other issues, such as Christian or other religious beliefs?

Absolutely. What underpins the diversity and inclusion strategy that we set out is that it covers all the protected characteristics and more. In essence, in that strategy, we say that we want people to feel valued and to be able to succeed whoever they are and wherever they come from. It covers the whole spectrum.

I talked about the work that we did on setting up a women in leadership programme. The idea was always that we would use that programme as a template for similar work in relation to all forms of discrimination. That is why we have also set up a number of networks, not just a women’s network but a lesbian, gay, bisexual, transgender and intersex network and a carers network—I will not mention them all because I will forget one and get into trouble for that. That is the reason why we did that.

The diversity and inclusion strategy is partly a response to our public sector duty under the Equality Act 2010 to eliminate discrimination. The three main aims in that policy are to diversify the Parliament’s workforce, to create an inclusive working environment and to have in place services that are accessible for the people with whom we engage. All that work is going on alongside the work that we are doing specifically on sexual harassment.

The other relevant thing that we are working on is the recommendations that came from the commission on parliamentary reform. There is a range of recommendations specifically on diversity and the board that Susan Duffy mentioned has that work programme to factor in to everything else that we are doing.

What activity has there been on the phone line and do you feel that it is fulfilling its purpose?

We have had nine calls since November. It is important to note that the phone line is only one route through which people can seek advice. We know that people are seeking advice from parties, which have their own arrangements in place, and that a number of issues are being dealt with in that way. As I said, it is only one route for people to get clarification on the procedure that applies to their situation.

As for whether the line is fulfilling its purpose, it is one of many ways in which people can seek advice and make a complaint, and it supplements the existing employee assistance programme, under which people can contact an independent third party for advice on harassment or other matters. People can also go through their parties or through their line management or employer. However, we will have to review the current arrangements to ensure that people are not facing any barriers to accessing this support, and we might look to have external support in that respect.

When the phone line was launched, some concern was expressed about the limited hours of its operation and that some staff in the building might find it difficult to contact it privately during those hours, as they are essentially working hours. Have the operating hours changed, or has any consideration been given to altering them?

As you said, the phone line operates from 9 to 5, but we have made it clear to people that, if they need support, they can phone another helpline that is available 24 hours a day, 365 days a year.

It is important to note that there have not been that many calls to the employee assistance helpline. We have those provisions in place, but people are taking other routes such as going to their parties or raising matters with their employer. It is only one indication of the activity that is going on in the Parliament.

As Lorna Foreman said, we moved very quickly to set the helpline up, but the intention was always to look at how it was operating and whether we could make improvements based on the experience that we had.

Who operates the second helpline that you mentioned?

It is operated by one of our contractors through our employee assistance programme. It is also a counselling service and people can phone it up to get advice on matters affecting their employment as well as other quite general matters. If they feel that they need to talk through their experiences in order to build their confidence, they can get face-to-face counselling with one of our providers to enable them to take the steps that they want to take if they want to report something.

Was the other helpline already available?

Yes. It has been available for 10-plus years now.

You talked about having one point of access and one point of information, but, given that a helpline was already available, are we not confusing the issue by now having two?

The advice line provided under the employee assistance programme is a general one for people who might be experiencing employment issues such as discrimination, harassment or bullying. Advice will be given in general terms to support the person and give them a safe place to express how they are feeling and build their confidence with regard to the action that they want to take.

The main purpose of the new helpline is purely to help people navigate around our procedures. When we came to respond to the issue, we looked at our procedures and were surprised by their complexity, with various routes for contractors, members’ staff and our own Parliament staff. As a result, we wanted to have trained staff who could give that specific information to people but, because we had to act quickly, we could not get our contractors to take on that responsibility. After all, they needed time to build up their knowledge of our very complex procedures. We will look to extend the 24-hour helpline through an independent provider and build their knowledge of our procedures.

Given that Parliament and HR has looked at the issue anew and realised how complex the landscape is for someone trying to navigate their way through it depending on who employs them and who they feel has been harassing them, is it time that we had a much less complex system for people to work in?

Absolutely, yes.

Yes.

Yes.

I return to the code of conduct and the process of investigating a complaint through it. After a complaint has been dealt with and sanctions have been imposed, do you monitor whether the individual who has been sanctioned is carrying out the penalty, as it were? In what ways do you support the person who has complained after the complaint process has come to an end?

If members are sanctioned, we do not have any formal procedure under the code of conduct for monitoring the impact of the sanction. We may informally keep in touch with the relevant business manager who has been involved in the process to see how matters have—we would hope—changed since the sanction was imposed, but we do not have a formal procedure for doing that.

Complaints that are dealt with through our HR system are matters for the relevant line manager, office head or group head—whoever is the senior person in the line. It would be part of their on-going responsibilities to monitor behaviour to see whether the issue has been properly addressed for the longer term and not just for the incident that led to the complaint.

In the past, in order to help a person who wants support to modify their behaviour, we have offered people the opportunity to get one-to-one coaching or counselling.

On the support for individuals who have raised complaints, again, there is an opportunity for that person to go through counselling. They may also consider that they want the skills and the confidence to be able to raise matters themselves, because the best way to address issues is to be timely in nipping things in the bud.

We look at the lessons learned and think about how we can all contribute to improving relationships.

How is someone who has made a complaint supported through the process? I imagine that a person in that position must feel very isolated.

At the moment, there is a bit of a Chinese wall in relation to our set-up. If HR receives a complaint, we ensure that the alleged perpetrator also gets support from HR colleagues. Particularly when situations are very heightened—as they are now—going through the complaints process can be a very isolating experience, so we want to ensure that everyone is supported through it. We also encourage people to contact the employee assistance programme to get counselling support.

The code of conduct states:

“In all cases, opportunities for conciliation will be pursued in the first instance.”

What does that mean?

It depends on the circumstances and on the individuals. We must remember that one size does not fit all. Conciliation could include the involvement of HR, or HR appointing an external mediator to be involved in the process, as we have done in the past to try to resolve issues.

As I say, it depends on the circumstances and what the person wants to do. You have to go into conciliation meetings in good faith; you have to be committed to resolving matters. If the two parties are not committed to doing that, there is no point in progressing that course of action. If that is the case, we would look at the formal procedure.

We say in the code of conduct that conciliation will be pursued in the first instance in all cases. In our discussions about how we can best deal with the issues, we will have to look at whether that is appropriate in cases of sexual harassment.

10:45  

You mentioned that you regularly review the procedures. Was it the publicity that bounced you into the current review or would it have happened anyway?

The procedures for members’ staff were reviewed just before the most recent election, and work was planned on the dignity at work policy. We formed the dignity at work board last year, and part of its work programme was to review the dignity at work arrangements. We wanted to ensure that those arrangements go beyond the protected characteristics and that all of us can work in an environment in which we can contribute and flourish in our roles. That was the intention. The review goes beyond compliance with the legal requirements; we want to enable a culture in which we can all contribute.

It is probably fair to say that, under the dignity at work strategy, which runs until the end of the current parliamentary session, we were looking across the piece at diversity and inclusion. Some of the issues that Elaine Smith raised earlier were already on our radar, but it is fair to say that the recent publicity has meant that there has been a specific focus on sexual harassment in particular, which we did not anticipate when we set out on the current review.

Your evidence has been really helpful in explaining how things operate under the current rules. One of the things that the committee will have to consider is whether changes should be made to the code of conduct. I do not know whether you feel comfortable, as Parliament officials, expressing a clear view about changes that might be necessary, but are there any areas of the code that you want to draw to our attention in which changes should be considered?

We have touched on quite a few. Susan Duffy mentioned the issue of the code obliging there to be conciliation in all cases. We sometimes find ourselves looking for ways round that, because we have situations in which that is not entirely appropriate and is not what the person who has experienced the behaviour needs.

There are other areas in which we have some difficulty. Susan Duffy mentioned the interplay between the code and the dignity at work policy. The code obliges members to abide by all corporate body policies, but the dignity at work policy specifically says that it does not apply to members, so there is a contradiction there. We get round that by saying that the corporate body’s position is that members are obliged to abide by the spirit of the dignity at work policy. What that means is not explained anywhere in the dignity at work policy or the code.

We have touched on the fact that the code does not deal with complaints by members’ staff against the employing member. The code is silent on that. There are very good reasons for that, but perhaps the code could be more explicit on that.

Another area of concern is the fact that the guidance that supports the code refers to complaints normally being raised within one year. That is not an automatic barrier. There are ways in which complaints that are made outwith that timescale can be dealt with. We know from experience that many of the issues that we are discussing today can incubate for years and even decades before people feel confident enough to raise them, and what the guidance on the code says might present another barrier. We can explain that complaints can still be made more than a year after the events to which they relate, but people might wonder what they have to do for their complaint to be taken on board.

Lorna Foreman has hinted at some of the conflicts of interest that might arise in the HR office in supporting people who make complaints and people who are the subject of complaints. The HR office has to go to great lengths to make sure that it provides direct support.

Those are examples of issues that we struggle with in managing matters to do with the code of conduct. Even the terminology that is used for this category of complaints in the Scottish Parliamentary Standards Commissioner Act 2002—it refers to “excluded complaints”—sends a mixed message. Addressing that would require a statutory change. When someone who is building up the courage to lodge a complaint sees mention of “excluded complaints”, that is bound to create a bit of confusion. Perhaps the committee could consider that, too.

Thank you very much.

I have had no indication that members have any further questions, so I thank the panel for coming along. The committee has found your evidence extremely helpful.

10:49 Meeting suspended.  

10:51 On resuming—