1
 1                                       Tuesday, 30th March 2004
 2   (10.30 am)
 3                        MR DAVID HAMILTON
 4                        MS SANDRA BURROWS
 5   SIR WILLIAM MORRIS:  Good morning everyone.  Good morning,
 6       Mr Hamilton, a special welcome to you, and indeed to
 7       your colleague.
 8           Can I start by saying thank you very much indeed for
 9       accepting our invitation to attend the Inquiry, and to
10       give evidence, and for letting us have your written
11       submission, which we found extremely helpful.
12           I do appreciate that for some of our witnesses, any
13       process of this nature may seem a daunting task, so
14       I thought it would be helpful if I set out briefly how
15       we propose to conduct the hearing this morning.
16           But first let me introduce myself and the other
17       members of the panel.  I am Sir Bill Morris, recently
18       retired General Secretary of the Transport and General
19       Workers Union, and I have been asked to chair the
20       Inquiry.  As you can see, there are two other members of
21       the panel: Sir Anthony Burden, who recently retired as
22       Chief Constable of South Wales Constabulary, after 
23       a long and distinguished career in the police service;
24       and Miss Anesta Weekes QC, who is an eminent barrister,
25       and who sits as a recorder and part-time chair of
 
     2
 1       employment tribunals.  She was also counsel to the
 2       Lawrence Inquiry.
 3           Mr Hamilton, as you know, we have been tasked by the
 4       Metropolitan Police Authority to conduct an independent
 5       inquiry into professional standards and employment
 6       matters in the Metropolitan Police Service.  Our task is
 7       the MPS as an organisation, and not the individuals who
 8       make up the organisation.  The inquiry we are conducting
 9       is inquisitorial, and not adversarial by nature or
10       character.
11           We are very keen to enquire into the issues raised
12       by our terms of reference so we can make appropriate
13       recommendations for further good practice, rather than
14       concentrating on making criticisms of the MPS as
15       an organisation, or in particular, the individuals
16       within it.
17           To help us in our task, we are keen to hear from all
18       our witnesses, not just about what is wrong with the
19       MPS, but also what is right with it; most importantly,
20       any suggestions in putting matters right.
21           Let me say that a transcript is being taken, so that
22       we can have a proper record of the evidence given by all
23       our witnesses.  This will be posted on our website later
24       today.
25           At the end of these introductory remarks, I will
 
     3
 1       lead on the questions to you, followed by my colleague,
 2       Miss Weekes, first, and then followed by
 3       Sir Anthony Burden, and any supplementary questions that
 4       I might find necessary.
 5           At the conclusion of our questioning, I will offer
 6       you the opportunity for a brief closing comment.
 7           In your written submission, which will be posted on
 8       the Inquiry's website following your evidence today, you
 9       have set out for us the following information: first,
10       your role and responsibility as director of legal
11       services; the structure and work of the department of
12       legal services, and its relationship with the
13       Metropolitan Police Service.
14           You have also indicated some views about the conduct
15       of employment tribunal claims within the directorate of
16       legal services.  You have given us your views on
17       Fairness at Work, and an explanation of your role in
18       developing relevant policies.
19           We would like to ask you some questions about the
20       material in your submission and seek your views on
21       a range of matters that are of interest to us.  Before
22       we raise these issues, however, for the benefit of the
23       transcript, I wonder if you would mind formally
24       introducing yourself and your colleague to the Inquiry.
25   MR HAMILTON:  Certainly.  I am David Hamilton.  I am the
 
     4
 1       director of legal services to the Metropolitan Police.
 2       My colleague is Miss Sandra Burrows, who is an assistant
 3       director within my department, and she heads the group
 4       that has conduct of all employment and employment
 5       tribunal and misconduct matters, both on the police
 6       staff side as well as the police side.
 7   SIR WILLIAM MORRIS:  Thank you very much.
 8                 Questions by SIR WILLIAM MORRIS
 9   SIR WILLIAM MORRIS:  Let me start, Mr Hamilton, by looking
10       at the role of the legal service to the Met.  When
11       Lord Harris gave evidence to us, he referred to
12       a perception within the MPA that in too many cases, the
13       legal service and indeed the legal advice provided by
14       your directorate, was overtly defensive, with an
15       emphasis on defending the operation and defending the
16       organisation at all costs.  Do you consider his comments
17       fair?
18   MR HAMILTON:  I certainly do not consider them accurate, and
19       I am not entirely clear on what evidence he comes to
20       that assumption.  Obviously, in our role in handling
21       employment tribunal work and litigation, an early matter
22       for us is an assessment of whether a claim is
23       well-founded or not, and we try to provide material to
24       the Metropolitan Police as client, as to whether it is.
25           That is not based on an assessment by us alone: we
 
     5
 1       gather evidence, we see witnesses and take statements
 2       from witnesses; where it is necessary for us to see
 3       experts, we obtain evidence from experts.  We obtain the
 4       input of counsel, that is counsel at the independent
 5       bar; and we provide an assessment of what the risks
 6       around the case are, evidentially, and what the
 7       strengths and weaknesses are.
 8           Like any solicitor in private practice, we advise
 9       the Metropolitan Police and the Metropolitan Police
10       instructs me what it wants to do.  So the decisions are
11       not mine, and the picture that we paint, I would not
12       say, is overly defensive; the picture we paint or try to
13       paint is an accurate picture of what the situation is
14       that the Metropolitan Police is having to face.
15   SIR WILLIAM MORRIS:  Just taking this sort of
16       solicitor/client relationship half a step forward, do
17       you see it as a solicitor's job to advise in his or her
18       client's best interests, obviously, which includes
19       advising on the law, but also on practical
20       considerations; and do you follow that course as best
21       practice in respect of your duties and responsibilities
22       as you see them to the Metropolitan Police Service?
23   MR HAMILTON:  Our advice is not solely hard law, and I think
24       I have indicated this in the submission.  We are able to
25       express a view; we are not necessarily always the best
 
     6
 1       persons to express a view as to the wider implications
 2       of contesting or settling a claim.
 3           For example, publicity is a matter which may bear
 4       quite heavily on the Metropolitan Police Service; I may
 5       be able to express a view as to how that may play out,
 6       but in the end, what I am there for is the evidential
 7       assessment.  There are others who are probably better
 8       placed than I am to take into account those wider
 9       considerations.
10           I mean, if I could, in the context of the assessment
11       and my role, just paint you a picture of what has
12       happened with employment tribunals this year that may
13       assist in your examination of the matters that concern
14       you: up to last night, we had during the current
15       financial year, from 1st April, received 59 new
16       employment tribunal claims.
17           Now during the same year, 2003 to 2004, 56 claims
18       were withdrawn -- that is not the 56 out of that 59,
19       because some will belong to earlier years; but 56 were
20       withdrawn, eight were struck out, 20 were settled.  11
21       were taken to a fully contested hearing: nine of which
22       were successfully resisted by the Metropolitan Police,
23       two of which were not, one of those is under appeal.
24           So you can see from those figures that large numbers
25       are withdrawn, significant numbers are settled and
 
     7
 1       a relatively small number compared with those other two
 2       numbers are actually contested.
 3   SIR WILLIAM MORRIS:  An impressive record, some might say,
 4       but are we looking at this issue purely on the basis of
 5       settlements from a point of view of winning or losing;
 6       what about, if you like, the reputational impact on the
 7       Metropolitan Police Service?
 8   MR HAMILTON:  There is a severe reputational impact, and
 9       I do not regard -- I chose my words carefully, I said
10       "successfully resisted", I think.  I do not regard
11       successfully resisting an employment tribunal claim as
12       a win in that sense, because there are no true winners.
13           But nevertheless, bearing in mind the reputation,
14       one of the things we do when we receive an employment
15       tribunal claim is to front load our gathering of
16       information, so that an early a picture as possible can
17       be presented to the service as to whether or not this is
18       a claim that looks as though it should be settled,
19       compromised as quickly as can be, or whether it is
20       a claim which is short on merit, or has other
21       difficulties which require that it be investigated
22       further, possibly with a view to taking it through to
23       a hearing.
24           In the middle there, one can also have a situation
25       where we have got no particular difficulty in advising
 
     8
 1       that a case should be settled, but there may be some
 2       difficulty in arriving at an amount that is agreed
 3       between the parties that will settle the case.
 4       Normally, that is achieved once we decide that
 5       a settlement is advised, and the client accepts that
 6       advice.
 7   SIR WILLIAM MORRIS:  Just moving on, as a major public
 8       institution, do you think it is the role of the
 9       Metropolitan Police Service to lead public policy on
10       issues, employment issues such as discrimination,
11       diversity and other social policies?
12   MR HAMILTON:  It is very important for the police to do that
13       and the Metropolitan Police as the biggest of the
14       services, and in the context of what it needs to
15       achieve, in terms of diversity, ethnic minority
16       recruitment and so on, and I think you have heard from
17       other witnesses as to the sort of matters that it
18       becomes engaged in; so the short answer is yes.
19   SIR WILLIAM MORRIS:  But bearing in mind the point that
20       I made earlier about reputational damage, and also in
21       the light of what you have just said about the
22       importance of institutions like the MPS leading public
23       policy, can I just raise with you the concept of public
24       policy and discrimination which has been with us, in
25       terms of legislation, since the 1976 Act?
 
     9
 1           With the inevitable consequences for statutory
 2       change, what was the point of fighting the Liversidge
 3       case?
 4   MR HAMILTON:  The Liversidge case, of course, was not
 5       a Metropolitan Police case.
 6   SIR WILLIAM MORRIS:  No.
 7   MR HAMILTON:  The point, as I understand it, and I will look
 8       to my colleague to fill in any gaps I will leave, but
 9       the point, as I understand it, was a point that was
10       raised by the tribunal itself, whether at first instance
11       or on appeal I cannot tell you, but it was a point that
12       the tribunal itself raised, and then it invited argument
13       about it.  And as we know, the conclusion was that the
14       law as it then stood gave no jurisdiction to
15       an employment tribunal to make any award against a chief
16       officer of police in relation to acts of discrimination
17       carried out by his or her officers.
18   SIR WILLIAM MORRIS:  But we have heard evidence, in the
19       context of this Inquiry in relation to the
20       Metropolitan Police, that they thought it was right that
21       it should have been contested.
22   MS BURROWS:  Could I perhaps assist there?  I do not think
23       it was so much a question of contesting the issue, but
24       the fact was that there was no choice about the matter.
25           The straightforward issue for the employment
 
    10
 1       tribunals was whether they had jurisdiction to hear the
 2       claim or not.  A comparison might be a police officer
 3       who brings, as sometimes is the case, an unfair
 4       dismissal claim in an employment tribunal.  Inevitably,
 5       that is a claim that the tribunal cannot entertain,
 6       because it has no jurisdiction.
 7           So it was not a question of our deciding one way or
 8       the other about the matter, but rather accepting that
 9       the tribunal had no jurisdiction.  The position that
10       that led applicants into was that they had to seek to
11       amend their claim, to put it in a different way.  The
12       options that they had available to them were to put
13       forward alternative arguments, based upon the chief
14       officer's direct liability, and that was a course that
15       a number of applicants chose to take.
16           It then became a matter for each individual within
17       the employment tribunal whether they accepted the
18       application to amend or not.
19   SIR WILLIAM MORRIS:  However, in the light of the amendment
20       to the Race Relations Act, the question is: would the
21       Metropolitan Police Service have preferred the matter to
22       have been left the way the Court of Appeal saw it?
23   MR HAMILTON:  It would have been infinitely preferable for
24       its effect if the decision had not gone the way it did,
25       because what it meant was it put large numbers of
 
    11
 1       applicants in limbo; in a position where the
 2       organisation could not, even if it wanted to, I would
 3       suggest, make a payment, because there was no
 4       jurisdiction for an award to be made.  In effect, as
 5       a matter of sort of financial propriety I would imagine,
 6       no basis upon which a payment could be made on
 7       an ex gratia basis.
 8   SIR WILLIAM MORRIS:  In your submission, Mr Hamilton, at
 9       paragraphs 83 to 84, you mentioned various matters about
10       the relationship between the employment tribunal unit
11       and indeed your directorate.  It has also been raised by
12       some witnesses, and questioned, whether the employment
13       tribunal unit is based in the best possible location,
14       which is the directorate of professional standards.
15           Do you think that it would benefit from being
16       located elsewhere within the Metropolitan Police
17       Service, outside of the Department of Professional
18       Standards?
19   MR HAMILTON:  I think if there is a perception that this is
20       a matter of concern that it may be better situated
21       outside the Department of Professional Standards.
22       I know that you will hear from Esme Crowther this
23       morning who heads that unit, but as I understand it, she
24       and the members of her unit are HR professionals; they
25       are actually situated in the same building as HR staff,
 
    12
 1       rather than TPS staff, and in addition to what is
 2       revealed in my evidence, they provide guidance to
 3       managers who are seeking it on the handling of
 4       employment differences at the stage before it gets into
 5       sort of formal Fairness at Work.
 6           So there would be a certain consistency, if I put it
 7       that way, if they were actually to be attached to HR.
 8   SIR WILLIAM MORRIS:  So you would support a structural
 9       change for, say, HR, ET and perhaps diversity; could you
10       give us your view on that?
11   MR HAMILTON:  It is not for me, but I would not have
12       a problem with it.
13   SIR WILLIAM MORRIS:  You have a view; it is not your
14       decision, I accept that, but if you were consulted --
15   MR HAMILTON:  I would support it.
16   SIR WILLIAM MORRIS:  Just taking that half a step further,
17       and assuming we had this magical shift of HR, diversity
18       and ET, would you see that new directorate, shall we say
19       for the purpose of the exercise, having its own legal
20       back-up to support the ET cases, leaving you with
21       litigation?
22   MR HAMILTON:  I have actually had this debate, but not
23       recently.  The third group that Miss Burrows heads was
24       actually formed as a discrete group approaching five
25       years ago.  Before then, the individuals as lawyers who
 
    13
 1       were handling the employment tribunal cases were part of
 2       a bigger group that also did other things.
 3           I had a debate which in fact I generated with the
 4       then head of personnel, as was then called, because
 5       I thought that the importance and the volume of the work
 6       had grown to the point where we should have a discrete
 7       group, and that we should have somebody senior
 8       heading it.
 9           Now a debate was had about whether it was sensible
10       or profitable to have lawyers sited, if you like, within
11       the HR department.  I do not actually see that there is
12       a benefit in that.  I am neutral in the sense that they
13       work fairly discretely on the areas that they are
14       covering, but they do need an understanding, which might
15       be lacking if they were separated off from other lawyers
16       more generally, of civil litigation; we handle some
17       employment actions, for example.
18           There is this issue about misconduct that would have
19       to be separated out, and I think that to use the cliche
20       word, it would not be a good idea to operate too much in
21       silos.  Those who are handling the employment work now
22       in the police will need -- and you will have heard
23       something along these lines, I guess; they will need
24       a good knowledge and probably an increasing knowledge of
25       the police misconduct system, and indeed, this group has 
 
    14
 1       that knowledge, and will acquire the knowledge of the
 2       new system by reason of the fact that it also handles
 3       misconduct issues.
 4           I do not see any difficulty in a lawyer dealing with
 5       those aspects of the matter.  We do not, incidentally,
 6       have the one lawyer handling both the ET and misconduct,
 7       if the two coincide, for obvious reasons.
 8   SIR WILLIAM MORRIS:  Well, anticipating that you might not
 9       have liked model one, let me offer you model two.  Why
10       not put the legal directorate and have a directorate of
11       legal services, ET, obviously, as a unit within that,
12       diversity and HR, all people related issues?  What is
13       wrong with that? 
14   MR HAMILTON:  Nothing wrong with it, I think I would say,
15       but again, it is a case of where you hive the work off.
16       The work that my directorate delivers is probably in
17       total about 65 to 70 per cent the combination of work
18       that we do for DPS, which includes the civil action
19       work, this work that we are talking about today.
20       Another 30 per cent that is a range of material, across
21       anti-terrorist work, disclosure and all matter of other
22       things.
23           Now if you are delivering within what the
24       Metropolitan Police wants, if you are delivering the
25       totality of the service, you get a better cross
 
    15
 1       fertilisation of experience and expertise if you have
 2       your unit in one place.
 3           We could certainly site a unit in HR and other units
 4       elsewhere, but in the end, all of that needs to be
 5       brought together and managed so that you have the cross
 6       fertilisation, as I said, and also, it helps towards
 7       a broader consistency of approach.
 8   SIR WILLIAM MORRIS:  You see, our terms of reference obliges
 9       us to look at workplace issues, and in doing that, we
10       put people at the centre, the centrality of workplace
11       issues are people.  Part of the evidence that we have
12       explored is the fact that we have got a number of
13       people-centred services within the MPS segregated, and
14       we do not understand how you can have joined up policy
15       development and implementation in fragmented
16       compartments.
17           We have been searching very hard to find what has
18       been described as the golden thread which runs through
19       the whole concept of policy development, policy
20       implementation, monitoring and delivery; because at the
21       end, what we are about is to support the operational
22       frontline, which is the officers.  We are searching for
23       that golden thread.
24   MR HAMILTON:  I mean, to use your analogy, I think the
25       second model you have been asking me questions about
 
    16
 1       would actually fragment the legal service.
 2           We are there, the organisation knows where we are;
 3       it knows what we can deliver.  Life being what it is,
 4       more and more problems tend to come in where you are
 5       using expertise from more than one group.  You can have
 6       a crossover obviously between employment law, issues
 7       around data protection, which you are getting with
 8       freedom of information and so on, and we get a crossover
 9       sometimes with civil actions and ETs.
10           Personally, I think if we were talking about
11       a fragmenting -- I will use the word again -- of the
12       legal services, producing a cohesive service to the Met
13       would actually become more difficult rather than less.
14   SIR WILLIAM MORRIS:  That assumes you are satisfied with the
15       way things are working now; are you?
16   MR HAMILTON:  Well, one is never satisfied that one is
17       getting everything right, but my personal view is that
18       that change would not actually produce tangible
19       benefits.
20   SIR WILLIAM MORRIS:  Okay.  I will kid myself that model one
21       had solicited some support.
22   MR HAMILTON:  Guardedly!
23   SIR WILLIAM MORRIS:  I see footsteps of retreat.  We will
24       move on.  It is interesting, in terms of the role that
25       you see in terms of the directorate of legal services;
 
    17
 1       do you see that role as a senior member of the MPS
 2       management team, sharing collective responsibility for
 3       what happens in the organisation, or merely an advisor
 4       on the law; how do you see the role of that directorate?
 5   MR HAMILTON:  There is an element of both, but the primacy
 6       has to be with the second.  The Met has a whole wealth
 7       of experience across a whole range of matters, and I am
 8       able, when we need policy shifts -- I think I can give
 9       one example, not in this field, but it does it quite
10       well: I am able to, if you like, get into the Met and
11       cause that to happen.  I have access to the top whenever
12       I want it.  The Deputy Commissioner, you have seen from
13       my submission, is my line manager; the Commissioner
14       always makes himself available to be seen if I ask.
15           But nevertheless, the primacy is around the role as
16       a lawyer.  We are involved, and again, it is indicated
17       in the submission, in policy formation, but usually,
18       unless it is directly within an area for us, a policy
19       will become discussed with recognition of legal
20       implications and then we will feed into that.
21           The example I was going to give you, which made some
22       sort of sea change in the way that the organisation
23       reacted to civil claims, was when the Woolf reforms to
24       civil procedure were introduced.  Because that change
25       involved a much quicker and more detailed upfront
 
    18
 1       response to a letter of claim, which required you,
 2       within a short time limit, three months, to indicate
 3       whether you accepted the claim, or if you did not, to
 4       indicate why not, and to provide disclosure of core
 5       documents.  It required a significant change and
 6       improvement, I might say, in the way in which we could
 7       get information from around the Met when we had a claim
 8       in, and that involved professional standards at a high
 9       level.
10           I was interacting initially with the then Deputy
11       Commissioner, and then with the Deputy Assistant
12       Commissioner on his behalf, so as to bring about the
13       necessary changes, which were ultimately published and
14       enabled us to comply with these requirements.  So that
15       is an example, albeit sort of tied into the Met being
16       able to provide an effective legal response as required
17       by court rules, but nevertheless, it involved policy
18       changes as well.
19   SIR WILLIAM MORRIS:  Okay.  In your submission at
20       paragraph 16, you say, and I quote:
21           "Whilst the MPS is a caring and ethical
22       organisation, it should not be or become a soft touch."
23           Does that mean a win at any cost culture?
24   MR HAMILTON:  I do not think that is what it says, and it is
25       certainly not what I mean.
 
    19
 1           The reference to soft touch I have seen, not in the
 2       recent past, but I have experienced a situation where
 3       civil claims were not properly defended.  It was too
 4       much difficulty to get the information available; the
 5       lawyers could do so much in trying to track down
 6       information, but in the end, if you were dependent on
 7       people searching out documents and so on, it was not
 8       happening.  A view was taken that it was cheaper and
 9       quicker to pay these cases off.  Well, the inevitable
10       happens then, you tend to attract more, and more
11       speculative, claims.
12           So there clearly is a balance to be struck, but if
13       one takes the view that on every occasion, and I am
14       hypothesising: if one takes the view that on every
15       occasion an allegation of discrimination is made that
16       the only thing to do is to pay compensation without
17       having a view to the merits, then I think that you send
18       several messages out to the organisation.
19           You will tend to undermine the managers, who have
20       been doing their best, and maybe, in my example, have
21       been handling matters properly.  You will tend to
22       attract additional claims: some of which may have some
23       merit; some claims -- always some claims will have
24       merit, some will have some merit.  You will be expending
25       money that could better be spent on policing, which is
 
    20
 1       what the budget is there for.  So that is the context in
 2       which I made that comment.
 3   SIR WILLIAM MORRIS:  I suppose that there is always
 4       a balance to be struck somewhere, but let me just share
 5       with you what the picture painted by the
 6       Metropolitan Police Federation was.  Their picture is
 7       that the directorate of legal services is hostile to the
 8       interests of MPA/MPS employees.  They say that before
 9       September/October 2003, the MPS always appeared hostile
10       to any settlement discussions; letters received from the
11       Force's solicitor in response to attempts to settle are
12       often aggressive and aggravate their members.  That is
13       the picture now from the Metropolitan Police Federation.
14   MR HAMILTON:  I am going to ask my colleague to answer that,
15       because she is nearer the coal face than I am, as it
16       were, but I will say this, that my experience as part of
17       a mirror image is that it is often very difficult to get
18       any response from the Federation's solicitors when one
19       is trying to settle.  But Sandra?
20   MS BURROWS:  I would have to say that my reaction to that is
21       one of surprise, bearing in mind the number of cases
22       that we have settled during the current financial year,
23       to which Mr Hamilton has already made reference.
24           I think it is important to emphasise that even once
25       an employment tribunal claim is issued, we are always
 
    21
 1       keen to see if resolution can be achieved.
 2           I would not see that resolution as necessarily
 3       involving the payment of compensation.  I would say that
 4       in employment tribunal claims, I think that there are
 5       other issues which are most often far more important.
 6       At the end of the day, it is about maintaining the
 7       employment relationship and about an individual feeling
 8       comfortable to return to the workplace, if he or she is
 9       by that stage off sick, or otherwise rebuilding
10       relationships.
11           To that extent, the lawyers who work within my group
12       are always alive and would actively participate in any
13       request that other issues be looked at, and resolution
14       achieved.
15           Indeed, it does seem to me that that is borne out by
16       the number of settlements that we have reached during
17       that period.  I know that the comment has been made that
18       frequently, the legal process tends to lead away from
19       settlement, but our experience is different.
20   SIR WILLIAM MORRIS:  We have had other comments, and I will
21       just offer the last one -- other comments indicate that
22       it has been suggested that there is, if you like,
23       a strategy in the legal department which fosters delay,
24       prevaricates, seeks to undermine the morale of
25       applicants by seeking constant postponement; I have had
 
    22
 1       a look at some of the applications for postponement
 2       myself at the tribunal, and it is concluded by
 3       an attempt to demoralise the applicants.
 4           Just one final question, taking those -- just
 5       looking to the future, do you think that there is a key
 6       somewhere that could be applied, in a fair and robust
 7       way, but would restore the confidence in the department,
 8       recognising that every tribunal case represents
 9       a failure on the part of someone, principally
10       management, and the concept of reputational cost?  So if
11       you can leave this Inquiry with a view as to how
12       confidence can be restored, I think we would see it as
13       an immensely valuable contribution.
14   MR HAMILTON:  If I take the points in the order, I think, in
15       which they were raised: anyone who has been involved in
16       litigation on an individual basis, whether as a claimant
17       or a defendant, and it does not matter what it is, it
18       might be a debt claim, a neighbour dispute, employment
19       tribunal, will understand the level of anxiety and upset
20       that comes when the letter comes thudding on to your
21       doormat with the particulars of what the other side are
22       saying.
23           Not only is that upsetting, but the deliverers of
24       that bad news and upset are the lawyers.  I can fully
25       understand why some people -- and particularly, of
 
    23
 1       course, we also have applicants in person, which are
 2       more difficult to deal with.  I can fully understand how
 3       the feelings of demoralisation and so on are engendered;
 4       that is point one.  There is no strategy or intent to do
 5       that, and I think it is fair to say that feelings of
 6       that type that are engendered may, to some degree, be
 7       an inevitable by-product of the fact that the
 8       proceedings have been brought.
 9           In terms of strategy, delays, the employment
10       tribunal sets the timetable.  There are situations in
11       which it is thought necessary to apply for adjournments
12       or further time.  This can happen for a variety of
13       reasons, but if the tribunal does not consider those
14       reasons are justifiable, then it will not grant the
15       adjournment; it is as simple as that.
16           Of course, there are some other situations,
17       particularly at the point where we file grounds of
18       resistance, where extra time may be asked for, because
19       the time limit of 21 days is very short and it may
20       actually serve the interests of the case better to get
21       more detail in at the start.
22           I think, a personal view, and I will ask my
23       colleague if she has anything to add to it, the logjam
24       of Liversidge was unhelpful, because it meant that as
25       far as individuals saw, here was some legal thing out
 
    24
 1       there that was causing their claim to go on ice for
 2       a considerable period; the longer a matter is
 3       unresolved, the greater the resentment that goes with
 4       it, quite naturally.
 5           I think that was very unhelpful, and I think now
 6       that we are over that, that, I hope, will assist --
 7       I hope it will assist in more people finding that claims
 8       are resolved more quickly, and that in itself will be
 9       a feature that will add to confidence.
10           Just before I check whether my colleague has
11       anything else to say, I might also add -- and I think it
12       is relevant to the general scheme of things -- that
13       I have a very experienced team of employment lawyers,
14       but many of them are quite junior in service to the
15       Metropolitan Police.  As I have pointed out in my
16       submission, they come from a range of backgrounds of
17       experience: one from commercial; two from local
18       authorities; one from a trade union, a qualified
19       mediator.
20           So I simply say that to try to give you some
21       reassurance that there is not some sort of dyed in the
22       wool approach that means that we try to defend at all
23       costs.
24   MS BURROWS:  I would certainly agree with Mr Hamilton's
25       comments about the effect of the Liversidge decision.
 
    25
 1       That is certainly not something that we would ourselves
 2       have wished for in terms of the delay that it caused.
 3           I do feel that what in fact was a total of a three
 4       year period that was affected by that decision is
 5       atypical, in terms of the delays which would ordinarily
 6       be encountered.
 7           The situation where delay otherwise tends to occur
 8       is where there is an ongoing misconduct investigation
 9       under the Police Conduct Regulations.  That sometimes
10       does lead to delay, and we would wish that those
11       investigations could be swifter.
12           That said, employment tribunals are always very
13       concerned about granting stays; understandably, they do
14       not grant general stays.  They do impose timetables, and
15       in turn, the lawyers are at pains to point out to
16       an investigating officer what the tribunal's
17       expectations are.
18           That category of case aside, it seems to me that
19       most cases do proceed quite swiftly to a hearing.  There
20       was a period when there tended to be quite considerable
21       delay in matters being listed for hearing; it now
22       appears to me that that is no longer the case with the
23       employment tribunals in London.
24           If there is a case where there is no ongoing
25       investigation, it is listed for hearing within
 
    26
 1       a relatively limited number of months.  So again, I am
 2       somewhat surprised that that is the perspective that the
 3       Police Federation has on this issue, and I think it may
 4       be heavily influenced by the atypical results of the
 5       Liversidge decision.
 6           In terms of restoring confidence, I think mediation
 7       will be helpful as a way forward for the future, and we
 8       have mentioned in our statement that at the moment, the
 9       government is looking at this whole area.  There was
10       a consultation exercise at the close of last year, and
11       I know that a paper has now gone to Ministers.
12           I think mediation is an extremely helpful tool in
13       keeping cases away from the tribunal and focusing on the
14       issues that really matter, in terms of ensuring the
15       ongoing productive nature of the employment
16       relationship.
17           But I would again emphasise that I would not see
18       that in terms of always giving applicants payments of
19       compensation.  It is a question of looking at the
20       broader issues.  There will be claims which are not
21       justified, and that is not to say that applicants do not
22       believe genuinely that they are issues of concern to
23       them, and I think that is the benefit of mediation, that
24       it enables those perceptions to be examined, and the
25       reasons to be examined.
 
    27
 1           I am hopeful that in the future, mediation will be
 2       used more broadly in employment tribunal disputes.  It
 3       is strange in many ways that employment tribunals have,
 4       to some extent, fallen behind the other civil courts in
 5       the use of mediation as a tool, but I think also, it is
 6       important to say that where claims are unjustified, it
 7       is important to give support to managers who have acted
 8       correctly, to demonstrate, in fact, that the
 9       organisation is moving on and that lessons have been
10       learned, and that indeed, the diversity training that
11       has been delivered has had an impact.
12           So there are two sides to this: of course, there is
13       the position of applicants which -- clearly you have
14       heard from applicants, and I would agree that exposure
15       to the employment tribunal process will never be a happy 
16       one for all the parties who are involved, but there is
17       another side, and I think that is something that the
18       organisation does need to focus on in giving appropriate
19       support where people have acted properly.
20   SIR WILLIAM MORRIS:  Thank you both for that.  I do not want
21       to labour the point, and please, there is no need to
22       answer, but you might just reflect whether it is
23       necessary, as you have put it, to front load the
24       information gathering right at the start, which in
25       itself, quoting your own words here, might be
 
    28
 1       a contribution to delay.  But that is a suggestion;
 2       I will leave that.
 3           Right, that concludes my questions, and moving on,
 4       I will just ask Anesta Weekes to pick up her questions
 5       that she wants to put to you.
 6                     Questions by MISS WEEKES
 7   MISS WEEKES:  Good morning to you both.  Can I please go
 8       back to the topic of settlement and compromise
 9       agreements?  I am very happy if either of you answer.
10       I am particularly interested in the context of what you
11       have already said on resolution to discuss the role of
12       HR.  Does HR have any role at all in settlement
13       proceedings within the Metropolitan Police?
14   MS BURROWS:  Ordinarily, as arrangements exist at present,
15       HR are outside the direct client chain.  However, and
16       I am sure you will hear this from Esme Crowther, when
17       a decision comes to be made in respect of the
18       settlement, there is wide consultation with other
19       parties within the organisation, and I am sure examples
20       will be given by Esme Crowther of where such
21       consultation has taken place with HR, as indeed it does
22       with the diversity directorate.
23           I know that both Esme Crowther and the other case
24       holders in her unit are keen to obtain a broad range of
25       views from all those who are stakeholders in the
 
    29
 1       process.
 2   MISS WEEKES:  One of the things that Assistant Commissioner
 3       HR told us yesterday is that he would welcome
 4       an opportunity for a much greater role of HR with
 5       employment tribunals, and indeed yourselves, because
 6       your role must go along with employment tribunals.
 7           His suggestion is that employment tribunals could
 8       sit better with HR; how would that affect your position?
 9   MR HAMILTON:  I think I might have touched on this a little
10       earlier.
11   MISS WEEKES:  Yes, you did.
12   MR HAMILTON:  I do not see that it would affect our
13       position -- and that is quite narrow, our position --
14       greatly at all, because the function that is being
15       carried out by the employment tribunal unit, although
16       attached to DPS, perhaps in many ways sounds more like
17       an HR attached function than it does a DPS function.  So
18       for that reason, I do not think it would impact hugely.
19   MISS WEEKES:  The settlement procedure as outlined by -- or
20       rather, the procedure when one receives an employment
21       tribunal claim, as outlined by Esme Crowther, because
22       I know you have read her submission fairly thoroughly,
23       is one that does involve that the ET claim itself, the
24       ET1, is distributed to quite a large number of people,
25       so they become aware that there is a claim.  Is that
 
    30
 1       necessary?
 2   MR HAMILTON:  I think it is distributed to the extent that
 3       it is necessary.  Esme has -- forgive me, Ms Crowther,
 4       that is a little informal; Ms Crowther has always been
 5       very astute and concerned, in my presence, about the
 6       confidentiality that clearly has to -- and rightly
 7       attaches to an employment tribunal claim.
 8           So I think you need to ask her, but my understanding
 9       is that the distribution does not go any further than
10       those who need to see it.  It may involve some senior
11       managers; parts of it will involve witnesses.  But I do
12       not understand that it is distributed willy nilly, and
13       I think it would be actually against what I know of how
14       she actually handles these matters.
15   MISS WEEKES:  My question was not about the sensitivity of
16       confidentiality, it was designed to flag up that the
17       more people that become aware of an employment tribunal
18       claim, perhaps the less likely it is going to be
19       settled, because the information has gone round a large
20       number of people.  Is that a possible effect?
21   MR HAMILTON:  I think that has --
22   MS BURROWS:  I think the converse argument is that it is
23       necessary in managerial terms that a borough commander,
24       that a personnel manager be aware that someone who
25       works, as it were, within their domain has brought such
 
    31
 1       a claim, because inevitably, there will be welfare
 2       issues attached to that.
 3           So whilst I understand the argument that you are
 4       advancing, I think in fact it is counterbalanced by that
 5       need to know, because so often, there are linked issues
 6       arising from that.  Regrettably, there very often is
 7       a pattern of the individual then taking sick leave, and
 8       I think there is a need for those who are managing that
 9       individual to have the full picture of what has
10       occurred.
11   MISS WEEKES:  What about this as an alternative, again it is
12       designed to encourage settlement: if, as is usually the
13       case, or sometimes is the case, the first that everyone
14       hears about a difficulty is when the ET1 is launched,
15       sometimes you hear about it before but not always; if HR
16       and the individual, plus line manager, got together for
17       a discussion, and indeed with yourselves, because there
18       is always a legal issue when somebody lodges an ET, is
19       that not a sufficient number of people then to talk
20       about settlement, as opposed to it going wider?
21           Because in my reading of the papers, I do not see
22       that as a method that has been adopted.
23   MS BURROWS:  I think that is a situation that in the future
24       will arise as a product of the dispute resolution
25       regulations.
 
    32
 1   MISS WEEKES:  Which does not come in until October 2004.
 2   MS BURROWS:  That is correct.  And obviously, as you will be
 3       aware, the procedure is still in draft form at this
 4       stage, but that will give a very helpful opportunity for
 5       that initial discussion and interaction to take place.
 6       That does encourage me in believing that in the future,
 7       there will be greater potential for these disputes
 8       being, as it were, drawn back from the employment
 9       tribunal process.  It is a very valuable opportunity
10       which does not exist at the moment.
11           The extent to which lawyers will be involved in that
12       process, I think we will have to wait and see.  Our
13       position would be that of course, we will give advice as
14       necessary, but the counterargument might be that it is
15       better to keep the lawyers out at that stage.
16           I think it very much depends on the issues that are
17       being raised, and obviously, we will give whatever
18       advice is perceived as being helpful in that situation.
19   MISS WEEKES:  As it appears you have no criticism of what
20       I have just suggested, and it indeed does mirror what
21       might happen when the dispute regulations come into
22       force in October 2004, hopefully, after our report has
23       been lodged, but we cannot ignore impending legislation,
24       then why do you think it has not happened before?
25       Because I do not think my suggestion is incredibly
 
    33
 1       bright, I think it is just a natural one that might have
 2       occurred.  Why do you think it has not happened before?
 3   MR HAMILTON:  You will probably get speculation from both of
 4       us on this one.
 5   MISS WEEKES:  I think the members of the public might think,
 6       well, here is somebody who has lodged, so he or she is
 7       unhappy; get together with the line manager, somebody
 8       from HR, and have a discussion.  It does not matter that
 9       he has lodged, because perhaps he has to do that in any
10       event, he or she, to protect their position, if there is
11       not a resolution.  Why does that not happen more often?
12       Why does it need the legislation to make it happen
13       within the Met?
14   MS BURROWS:  It actually does happen.  I mean, there are two
15       different situations.  Of course at the stage when
16       an employment tribunal application is lodged, very
17       often, the Fairness at Work procedure is simultaneously
18       still being explored, but because of the three month
19       time limit that is necessary for individuals to lodge
20       their claims to stay within time -- also, there is what
21       we describe as an early case conference procedure,
22       whereby again the interested individuals, in terms of
23       the applicant's line manager, could be the personnel
24       manager, it would depend very much on the particular
25       circumstances, can meet together.
 
    34
 1           Certainly that is a process that as the client unit
 2       considers appropriate, we will become involved in, so in
 3       practice, that has occurred in the past.  It has not
 4       occurred in every case, but certainly, it has occurred.
 5   MISS WEEKES:  Is there room for making it an obligatory
 6       stage?  Are there advantages or disadvantages to making
 7       it obligatory?
 8   MS BURROWS:  I think the issue arises as to whether in due
 9       course that will fit with the dispute resolution
10       regulations and the need for an individual to actually,
11       first of all, bring their complaint through the Fairness
12       at Work procedure.
13           It seems to me that that will necessarily be
14       a process which brings about really what you are talking
15       about here, in terms of an opportunity for parties to
16       sit down and talk about the area of concern.
17   MISS WEEKES:  Well, perhaps I should put it in another way.
18       Let us forget about regulations, and think of the
19       urgency, and all the good reasons that you and I know
20       for early dispute resolution.  There is no law about how
21       you do it, and undoubtedly, the Fairness at Work
22       procedure says, "Try and resolve it".
23           Why could there not be some sort of policy
24       direction, because there are so many policies in the
25       Met, that says, "Where there is evidence that somebody
 
    35
 1       has lodged or is about to, the line manager, the person
 2       aggrieved, someone from HR must obligatorily attempt to
 3       settle, and a record is made of why that is successful
 4       or not"; is that a good thing or a bad thing?
 5   MR HAMILTON:  It may be a good thing if the policy is
 6       implemented.  We have heard the expression "policy rich
 7       and implementation poor".  Reflecting on your earlier
 8       question, I think that perhaps the reason some matters
 9       have not been referred to us is that there have been
10       local attempts that had been hoped would be successful,
11       they were not, and then we have moved into the ET.
12           Coming very near to the suggestion that it might
13       well be an idea if there were a strong recommendation,
14       at least, to those who are trying to resolve the dispute
15       at an early stage to think about whether the lawyers
16       might have anything to add to the process, because --
17       Sandra will correct me if I am wrong, but I do not think
18       there are that many cases numerically where we ourselves
19       are involved at that stage, before, in fact, an ET lands
20       or is about to land; is that fair?
21   MS BURROWS:  That is correct.  There are a certain number
22       where issues are drawn to our attention where there are
23       specific legal issues.
24           If I could return to your previous suggestion, I see
25       nothing wrong at all with that proposal.  The only thing
 
    36
 1       I would add, however, is I do think there is a need to
 2       look at the whole picture, and therefore -- really,
 3       taking up a point which was already made in the
 4       statement -- I think there is a need to look at, as it
 5       were, the other side, and to investigate what those who
 6       are the subject of complaints say about the matter.
 7           So absolutely nothing wrong with that proposal, as
 8       long as it is not merely focused on what the applicant
 9       himself or herself has to say about the matter.
10   MISS WEEKES:  Forgive me, Ms Burrows, it will not be if the
11       team is the line manager, who may be the person
12       complained about, and the client -- let us say this
13       dispute is between the potential applicant and the line
14       manager and HR.  So you are going to have both views.
15   MS BURROWS:  Yes.  All I would observe in that situation is
16       that most discrimination claims in fact concern a very
17       wide number of individuals, so it depends very much on
18       the particular circumstances.
19           Certainly, if the dispute concerns the line manager,
20       that is absolutely right.
21   MISS WEEKES:  But it might not be anything at all to do with
22       discrimination.
23   MS BURROWS:  Yes.
24   MISS WEEKES:  If it is a workplace conflict.
25   MS BURROWS:  Absolutely.
 
    37
 1   MISS WEEKES:  All right, I think I have exhausted that for
 2       the moment.  Mediation, which is just another arm of the
 3       topic of resolution, and I think you have mentioned it
 4       on two areas in your submission.  But can I just deal,
 5       first of all -- why do you think, so far, mediation has
 6       not attracted more activity in employment law, or let us
 7       be specific, within the Met?  It certainly has been
 8       an almost now obligatory pick-up in civil proceedings,
 9       because of the Civil Procedure Rules.
10   MR HAMILTON:  Absolutely right.  It has generally, for
11       reasons that I am not clear about, not had anything like
12       the same pick-up in the employment tribunal sphere.
13           Now I would be guessing, but is it to do with the
14       generally shorter timescales between the beginning of
15       the proceedings and a hearing date arriving?  Might it
16       be to do with an issue that I have heard expressed as
17       a real difficulty in the hands of many, in that it is
18       difficult to get people round the table to mediate until
19       they have got the whole picture.
20           When the whole picture involves disclosure, exchange
21       of witness statements, and against a fairly tight
22       timetable, maybe for that reason, if no other, mediation
23       has not so far taken off in the same way as it has in
24       other forms of litigation.
25           But it has really got its place, because of course
 
    38
 1       a tribunal, in this sphere, can only award money.
 2       Mediation gives a much better chance of resolving on
 3       a much broader front.  So I guess we are all at one in
 4       forming the view, and certainly we have a view that
 5       mediation has got a real place in the resolution of this
 6       type of dispute.
 7   MISS WEEKES:  That is something that we are interested in
 8       exploring, because it is a good alternative to lengthy,
 9       expensive, legalistic approaches.
10           How do you see that we might promote it in our
11       considerations?  Because perhaps unless the Met see it
12       as being practicable and workable, they are not going to
13       adopt it; even if you have a policy, even if perhaps it
14       is written into some regulation.  So is it something
15       that you might have to go away and think about and write
16       up for us, as an additional addendum, or are you able to
17       say practically how it would work and what form it would
18       take, so that we could consider it as a proper
19       recommendation?
20   MR HAMILTON:  Personally, for me, I would like to go away
21       and think about it, but I do not know if there is
22       anything you would like to say about it now?
23   MS BURROWS:  If I could add, at the moment, the Fairness at
24       Work procedure does make reference to the use of
25       mediation.  I know that the whole scope of mediation and
 
    39
 1       alternative dispute resolution generally is being looked
 2       at by Denise Milani of the diversity directorate.
 3       I know she has done work in putting forward a number of
 4       options as to how that might be used, as it were, as
 5       workplace mediation, not necessarily linked to
 6       employment tribunals at all, which is a relatively new
 7       area, but I do know that some organisations are using
 8       workplace mediation, seemingly to good effect.
 9       Denise Milani can certainly give very much more detail
10       around that.
11   MISS WEEKES:  So who should we ask for that additional
12       submission, which does not just include workplace
13       mediation, but mediation attached to employment
14       tribunals?
15   MR HAMILTON:  It possibly is something to be worked out
16       between us, I think.  So Denise Milani is not here and
17       finding herself volunteered --
18   MISS WEEKES:  I think she is volunteered, yes.  But we would
19       be very grateful for some additional information on
20       that.  Recommendations cannot just be made in the middle
21       of the air, because they have no backbone.
22           You have mentioned that employing an outside
23       mediator brings with it the possible difficulties of
24       timing and expense, and that is obvious.  But there is
25       a big question mark about who should do the mediation,
 
    40
 1       in addition to the workplace issues, if one was going to
 2       have it as a proper, almost obligatory, structure.
 3           Again, is that something you can comment on now, or
 4       would that be something you would prefer to consider and
 5       put within the written document?
 6   MR HAMILTON:  I think we should include it in the written
 7       document.  I am not sure whether there is a difficulty
 8       that extends beyond the potential volume.  There are
 9       a number of organisations to whom you can apply, on
10       relatively short notice, for a mediator.  Yes, they come
11       at varying costs, quite widely varying costs, but
12       I think it is worth more consideration.
13   MS BURROWS:  ACAS are at the moment, as we mentioned in our
14       submission, running a pilot scheme for small employers.
15       I am hopeful that they might extend that scheme.  It
16       seems to me that there is one potentially quite
17       significant drawback in relation to workplace mediation
18       outside ACAS, and that is that people may feel inhibited
19       in having frank discussion, for fear that records, notes
20       of that meeting will subsequently be disclosed in
21       employment tribunal proceedings.  And as a matter of
22       law, it seems to me that that is right; there is no
23       automatic privilege that would attach.  Whereas, of
24       course, if ACAS are involved, it is a completely
25       different situation, there is that protection.  I think
 
    41
 1       that is something I would expect the government to look
 2       at in this consultation exercise.
 3   MISS WEEKES:  This is a thought of mine, so if you think it
 4       is nonsense, no doubt you will say so.  What about the
 5       possibility of seconding an appropriate officer of
 6       an appropriate rank to deal with mediation, so that
 7       there is a properly trained mediator with police
 8       operational background and experience and knowledge of
 9       how these disputes can arise?
10   MS BURROWS:  In principle, I do not see anything wrong with
11       that proposal at all.  It would depend on the extent to
12       which it was acceptable obviously to those who are
13       invited to engage in the process, because, of course,
14       the whole point about mediation is it requires the
15       consent of both parties.
16           There might therefore be issues as to whether that
17       individual is truly independent.  That is the only
18       observation I would make.  I do not know what the answer
19       might be, but that is a potential difficulty.
20   MR HAMILTON:  I would echo that.  I mean, clearly the
21       expertise of such an individual with their background is
22       there, and they could be trained up in the particular
23       skills that are needed, but the longer they are called
24       in by the organisation to mediate, then the more likely
25       and understandable it is that applicants are not going
 
    42
 1       to see the individual as an independent arbiter.
 2   MISS WEEKES:  Right, so perhaps the Met might have to spend
 3       the money and bring in the independent ones.
 4   MR HAMILTON:  Yes.
 5   MS BURROWS:  Unless ACAS do in fact decide to run
 6       a relatively low cost mediation scheme, which I am
 7       hopeful might be the outcome of the consultation
 8       exercise.
 9   MISS WEEKES:  Because it is clearly important that if one is
10       going to go down the route of any recommendation of
11       mediation, the person who mediates is crucial.
12   MR HAMILTON:  Yes.
13   MISS WEEKES:  Can I turn now to another aspect of dealing
14       with resolution of disputes, and the role of
15       representative groups and staff associations?  I am
16       particularly interested in the comments that you have
17       made about the Black Police Association.  We might want
18       to go to your references to it, and it is at DSH 1/27 of
19       your submission.  I hope I have that right.  It begins
20       at the bottom of page 27, at paragraph 83.
21           If I may just paraphrase, because it may take
22       a little bit too long to read, you are dealing there
23       with the perfectly acceptable and understandable
24       relationship between the client and the legal advisor,
25       and your position and your client, who is the MPS, and
 
    43
 1       the involvement of representative groups in that
 2       process.
 3           What has happened here, moving over on to page 28,
 4       and going down to paragraph 84 -- and I think you say it
 5       fairly -- is that with good intention, a representative,
 6       in some cases, of the BPA have become involved, in order
 7       to represent the interests of the potential applicant,
 8       but it has touched upon the client relationship.
 9           You have flagged that up here, have you not, in
10       paragraph 84.  You say:
11           "Although clearly well intentioned, this has
12       resulted in some confusion on the part of lawyers on
13       both sides.  In at least one case where a senior manager
14       reported to DLS that a particular applicant wished to
15       discuss settlement, approaches to his legal
16       representatives to ascertain his proposals elicited no
17       response despite repeated approaches."
18           You then deal with the comment that is flagged up in
19       the BPA's submission, where it refers to the tactics by
20       the MPS, and indeed yourselves, to be " wearing down of
21       opponents" by proceeding to hearings without regard to
22       the possibility of settlement; that is their genuine
23       perception and view of what is going on.
24           You say you flag up, you know, the professional
25       position of a client and a solicitor.  Now you would
 
    44
 1       agree with me, would you not, that lawyers are there to
 2       advise, they are not there to run the show?
 3   MR HAMILTON:  Absolutely.
 4   MISS WEEKES:  So you may take the advice of the solicitor,
 5       but make your own decision about how, and procedurally
 6       how, you go to resolve settlement; you do not disagree
 7       with that?
 8   MR HAMILTON:  I do not disagree with that at all.
 9   MISS WEEKES:  So what is the nature of your criticism there?
10   MR HAMILTON:  What is my problem?  My difficulty is, and it
11       is a practical issue, is that it seems to us that there
12       are occasions where the BPA -- it could be any union --
13       intercede on behalf of the applicant with senior
14       managers, and that will often be outside the employment
15       tribunal unit; that a discussion goes on as to how
16       things might be progressed, and that however it comes
17       about, the possible route for resolution is not reaching
18       the applicant's lawyer.
19           I can only communicate with the applicant's lawyer
20       and not the applicant.  Certainly our experience has
21       been -- we gave you one example, but I think there are
22       others -- that the communication link breaks, possibly,
23       and again I will ask Sandra, because she has more
24       detailed practical experience, because the applicant may
25       see, and may be seeing quite rightly that the BPA is
 
    45
 1       making more headway with a case than the lawyer is.
 2   MISS WEEKES:  What is the remedy for this?  Is it that the
 3       BPA do not communicate with the lawyer direct?  Is the
 4       client not communicating with his or her lawyer direct?
 5   MS BURROWS:  I think the remedy is that there is better
 6       communication between the appointed solicitors and the
 7       applicant and, if it is the BPA, indeed the BPA, just so
 8       that there is a coincidence of understanding on the part
 9       of those who are actually conducting the legal
10       proceedings.
11           Obviously, from our perspective, if an applicant has
12       proposals that they would like to make in terms of how
13       a particular case might be resolved, it would be very
14       helpful if those came to us from the appointed lawyers,
15       but in fact, what we are finding is that these
16       approaches or at least information about these
17       approaches, is reaching us via other individuals in the
18       organisation, and then we are struggling to get that
19       clarity from the appointed solicitors who themselves are
20       unaware of what is happening.
21           That is a frustration for us, when obviously we are
22       endeavouring to see whether resolution is achievable.
23   MISS WEEKES:  It would be a great shame to lose a settlement
24       because people are not communicating.
25   MS BURROWS:  Indeed.
 
    46
 1   MR HAMILTON:  The worst.
 2   MISS WEEKES:  Can I move to two short final issues?  The
 3       lawyers in general: I am quite accustomed to people
 4       commenting about how successful or not successful using
 5       lawyers are; we are used to it now, we are used to being
 6       hit over the head by people.
 7           A number of people, I think the Assistant
 8       Commissioner HR, has suggested, "Well, you know, really,
 9       using lawyers in conduct cases and disciplinary internal
10       proceedings simply does not help; it is complicated,
11       they raise long legal arguments about abuse"; you have
12       referred to it in your submission.
13           His suggestion is: well, we just really should not
14       have them at all and let officers also have access to
15       employment tribunals.  Do you agree with that?
16   MR HAMILTON:  Only in part.  I think the issue as we see it
17       is this: certainly we would agree that the police
18       conduct procedures have become very legalistic, the
19       regulations speak for themselves, there are plenty of
20       them, they are quite difficult to follow.
21           If one sits in on a discipline hearing which
22       involves legal representation on both sides, where it
23       will, where the officer is facing a potential dismissal
24       or reduction in rank if found guilty, the whole thing
25       has the feel much more of a Crown Court trial than it
 
    47
 1       does of some form of internal disciplinary hearing.
 2           So it is a quasi judicial process.  If you give that
 3       up, so that you have what will be available to police
 4       staff if they run into discipline difficulty, ie no
 5       representation except by a colleague or a union
 6       representative, then you have to open up employment
 7       tribunals to the individuals and the officers in this
 8       example.
 9           What I personally struggle with is the situation
10       where one is dealing with public complaints and public
11       complainants, because there is a system there that is
12       designed to deliver reassurance to the public that
13       public complaints are being properly handled; that
14       provides protection also to the accused officer.
15           The complainant requires the protection, it seems to
16       me, if the officer is represented, of representation in
17       the terms that the complainant is not him or herself
18       represented, but the case, on the matters about which
19       the complainant complains, is presented by lawyers.
20           I struggle with how one bridges that gap; question,
21       I suppose, whether there is a way of removing the
22       internal matters that are not the subject of complaint
23       into a system that is much less formal and more akin to
24       what is applicable to police staff.
25           It is not easy, that is for sure, by virtue of the
 
    48
 1       nature of the matters that come to be investigated.
 2       Some of the most serious matters, of course, just for
 3       clarity, investigated actually emanate internally, and
 4       are the sorts of things that may well become supervised,
 5       or in the worst cases, actually investigated and then
 6       pursued by the IPCC.
 7   MS BURROWS:  I would agree with that.  I think the important
 8       issue here is the role of the IPCC.  They are there to
 9       protect the complainant, that is their primary role.
10       Mr Hogan-Howe pointed yesterday to the fact that in the
11       context of criminal investigations, tactical complaints
12       can be made, and therefore the view that he expressed
13       was in that situation, police officers need protection,
14       but it is important to remember that the IPCC's role is
15       concerned with the complainant.
16           It therefore seems to us that there needs to be
17       a process which is seen to be robust, and we do have
18       difficulty in seeing how a process that did not involve
19       lawyers would give that sort of necessary reassurance to
20       the public, especially when one bears in mind the role
21       of police officers; they are, and there is no escaping
22       this, very different from other employees in their
23       duties and responsibilities to interfere with the
24       liberty of the citizen.
25           That is a hugely important issue, and therefore, it
 
    49
 1       is likewise extremely important that if a complaint is
 2       made, it is seen to be investigated thoroughly, and that
 3       the hearing is dealt with robustly and fairly.
 4           That seems to us to be a real difficulty in terms of
 5       adopting a different process, and indeed looking to
 6       something which is much more akin to the ordinary
 7       disciplinary procedure for employees.
 8   MISS WEEKES:  So do either of you have an answer to the
 9       difficulty?
10   MR HAMILTON:  No, is the answer.  I think it would require
11       a great deal of work, and it may be worthwhile, but
12       a great deal of work and consultation in order to get
13       where we want.
14           I guess there is a possibility, and this is only in
15       a small way, that perhaps some of the formalities, and
16       I will use the word "bureaucracy", might be addressed in
17       guidance to be issued by the IPCC.  There is temporary
18       guidance at the moment, but I am the first to
19       acknowledge that obviously, that has to operate within
20       the framework of the regulations themselves.
21   MISS WEEKES:  My last point is a question about the
22       assessment of the issues that are raised by officers in
23       employment tribunal claims.  You and your colleague have
24       a wealth of experience running this legal department as
25       to what it is that officers complain about when they
 
    50
 1       lodge at an ET.
 2           We know that they are entitled to lodge about
 3       discrimination, and we know from the documents that we
 4       have read that there are race and gender issues.  But
 5       gender issues are more than race issues, is that right?
 6   MR HAMILTON:  Slightly, I think.  I think it is a fairly
 7       even balance.
 8   MISS WEEKES:  Can I just ask you for some help?  Dealing
 9       first with gender issues, what is it that women are
10       complaining about?  Because undoubtedly, you must have
11       assessed these claims, so you have a very good
12       understanding of just what it is that is what I might
13       call the overall problem that women have.
14   MS BURROWS:  If I could say first of all what it tends not
15       to be, I am very pleased to say, and that is explicit
16       sexist language and conduct; that is now rare in terms
17       of employment tribunal applications.  It is much more
18       likely to be around issues such as requests for
19       part-time working; for example breast feeding in the
20       workplace, and how that might be accommodated; around
21       promotion processes, around postings.
22           I know that Esme Crowther in due course will be in a
23       position to expand on that, but what I am saying is that
24       these are decisions that affect someone's progress in
25       the workplace, rather than explicit sexist behaviour.
 
    51
 1   MISS WEEKES:  Well now that you know and have that
 2       knowledge, what is it that you know the Met are doing
 3       about understanding that these are the complaints that
 4       women are making about their workplace?
 5   MS BURROWS:  Again, that is something that Esme Crowther
 6       will be able to assist with, in terms of how lessons are
 7       learned from the particular issues raised in employment
 8       tribunals.  That is something which she takes back and
 9       action is taken in consequence of it, and those who need
10       to be informed about the fact that this was a difficulty
11       are indeed informed, regardless of what the outcome of
12       the employment tribunal application might be.
13   MISS WEEKES:  Race issues; what is it that visible ethnic
14       minorities are complaining about?
15   MS BURROWS:  One issue that does feature quite frequently is
16       decisions in relation to the misconduct process, that is
17       something that features quite significantly.
18   MISS WEEKES:  What do you mean by decisions in relation to
19       misconduct?  What does that mean, in terms of race
20       discrimination?
21   MS BURROWS:  The initial decision that they should be the
22       subject of an internal disciplinary investigation.
23   MISS WEEKES:  Is based?
24   MS BURROWS:  The assertion is that that is discriminatory.
25   MISS WEEKES:  I understand, thank you.
 
    52
 1   MS BURROWS:  In addition to that, again, issues around
 2       postings, opportunities for promotion; again,
 3       Esme Crowther will be in a position to assist.  I am
 4       sure there are more.
 5   MISS WEEKES:  And has there been a trend that white officers
 6       take cases of discrimination?
 7   MS BURROWS:  We do indeed have a number of claims of
 8       discrimination from white officers.
 9   MISS WEEKES:  What is their complaint?
10   MS BURROWS:  Primarily, it is the fact that they have been
11       made the subject of internal disciplinary investigation
12       when visible ethnic minority officers, as they assert,
13       have not been, and indeed, they have named comparators
14       to support that assertion.
15   MISS WEEKES:  Well, I will take up these issues with
16       Esme Crowther.  Thank you very much.
17   SIR WILLIAM MORRIS:  Mr Hamilton, your colleague, thank you
18       very much indeed for the responses to the questions from
19       Miss Weekes and myself.  We normally provide
20       an opportunity for our transcript writers to have
21       a rest, a short break.  So I propose to adjourn for
22       about five to ten minutes, and then we will resume for
23       Sir Anthony's questions.  Thank you.
24   (11.55 am)
25                         (A short break)
 
    53
 1   (12.05 pm)
 2   SIR WILLIAM MORRIS:  Right, we will recommence, and I go
 3       straight on to invite Sir Anthony Burden to put one or
 4       two questions to you, Mr Hamilton.
 5                 Questions by SIR ANTHONY BURDEN
 6   SIR ANTHONY BURDEN:  Thank you.  You have already answered
 7       the point -- of course the Virdi case is within our
 8       terms of reference, if I can just ask for that to come
 9       up on the screen.  Just to give you an opportunity,
10       Mr Hamilton, to make any other comment, if you wish to,
11       concerning the recommendations made about the department
12       of legal services.
13           I think you did answer the issue when the chairman
14       raised it with you at the very outset, but please ...
15       (Pause).  We have some difficulty getting it up.
16           Can I then perhaps refer to the hard copy?  My
17       apologies.  It says here:
18           "The MPS should seek to address the perceived
19       difficulties associated with the directorate of legal
20       services, namely, one, the use of Virdi intervention
21       strategies to limit the number of cases going to
22       employment tribunals, and two, to ensure that the
23       structure of decision making, where legal advice is
24       a critical consideration, but not the final arbiter, is
25       transparent to the MPA."
 
    54
 1           Now you did answer the second point, but I would
 2       invite you to make any other comment you would wish
 3       about that recommendation.
 4   MR HAMILTON:  The first part of that recommendation was seen
 5       by the organisation and, I will be frank, by DLS as
 6       something that actually was around the management before
 7       we got into employment tribunals.  So that
 8       recommendation was actually taken over by, I think, HR,
 9       and they responded to the recommendation and responded
10       in the terms of it as they were dealing with it, so
11       I only had the second part.
12           Just for the sake of completeness, we gave
13       a briefing, both face to face and with a short paper to
14       one of the MPA members.
15           It is possible, I think, that one of the reasons why
16       we have a difficulty with perceptions with the
17       Police Authority is that we are, if you like, not in the
18       frontline; when they are meeting with the MPS as client,
19       they would be meeting, for example, the commander of DPS
20       or whatever, which is point one, and I can think of
21       an incident where they were concerned about legal advice
22       that was given; I had a meeting on that occasion which
23       involved the Commissioner and the Chair of the
24       Police Authority, amongst others.
25           I offered a briefing to members, but I think the
 
    55
 1       view was taken that there were going to be relatively
 2       few members who would actually be concerned, and it is
 3       the natural communication difficulty between telling
 4       a member or one or two members actually what you do and
 5       why you do it, and that reaching a bigger audience.
 6   SIR ANTHONY BURDEN:  Sure, thank you.  Can I go on to
 7       another issue?  We have heard various submissions and at
 8       hearings about managers not managing, and not managing
 9       in specific circumstances.  Could I ask, and my
10       colleagues have already referred to your wealth of
11       experience as a department, in seeing these employment
12       tribunal claims come through -- can I ask you, and
13       I know this is a subjective judgment, but is there
14       an issue, do you feel, with the quality of management
15       decisions being made in the organisation which is
16       exacerbating the situation in the number of claims
17       coming through?
18   MR HAMILTON:  As you say, very much a matter of perception.
19   SIR ANTHONY BURDEN:  Sure.
20   MR HAMILTON:  I have little doubt personally that there are
21       cases where we end up with a difficulty which turns into
22       a tribunal because of an inability or unwillingness to
23       manage the situation.  I have no doubt about that.
24           I truly do not have a feel for how widespread that
25       actually is.  Statistics can be only the tip of the
 
    56
 1       iceberg of course, but if this were very widespread,
 2       I would be asking myself, would we not see greater
 3       numbers of Fairness at Work applications, would we not
 4       be seeing a greater number of ETs?
 5           This is a rhetorical question, but is there
 6       a question about the support that line managers are
 7       getting locally from personnel managers when a matter
 8       first comes up?  And this I think rolls over to the
 9       point Miss Weekes has been making to us, about the
10       possibility of a policy, so that the relevant people,
11       including a lawyer, are brought into the picture.
12           And yes, out of all that, it must follow, as
13       a matter of logic and perception but not much more, that
14       there are some bad management decisions.  Again, I do
15       not know whether Miss Burrows wants to add from her
16       perspective, or has anything to add.
17   MS BURROWS:  I do not honestly feel that I can.  I think it
18       is too much a matter of perception, rather than there
19       being empirical evidence.
20   SIR ANTHONY BURDEN:  Yes, but in terms of moving the
21       organisation forward, and the necessary feedback loop to
22       improve management, can I just ask your views on the
23       part played by your department, if any, or the
24       encouragement given to your department to play a part in
25       lessons learned?  I know in your submission you refer to
 
    57
 1       several initiatives that are underway, but we would
 2       like, please, to hear your views on that.
 3   MR HAMILTON:  I think it perhaps comes from two areas.  We
 4       cover in the submission the fact that legal services
 5       provide an annual rolling training programme for
 6       personnel managers.  It includes seminars; it also
 7       includes, on some matters, external input as well.
 8           We provide a monthly employment law update which
 9       goes to the client unit and the HR directorate, and
10       a monthly employment newsletter is produced.  So these
11       are all matters which feed their way back into the
12       organisation.
13           The training programme for personnel managers covers
14       a range of issues, but if I just highlight one or two,
15       I think it can be seen that they will be in the area
16       where difficulties can arise.
17           So key changes under police regulations;
18       applicability of Disability Discrimination Act to police
19       officers; attendance management, which is often
20       contentious; general procedure and practice in
21       employment tribunals, and so on.
22           On a short-term rather than a longer-term basis, we
23       run a duty solicitor scheme -- a duty lawyer scheme,
24       I beg your pardon, because in-house barristers as well
25       are employed by us -- so that if a quick-fire view is
 
    58
 1       needed, that is always going to be available.
 2   SIR ANTHONY BURDEN:  You have spoken -- you have referred
 3       to diamond groups and gold groups that sit in the
 4       ascendancy of a case whilst it is being managed through.
 5       Are there debriefs where we could have done better,
 6       where we got it wrong -- not from a legal viewpoint,
 7       from an organisational viewpoint.  Is that commonplace
 8       that meetings would continue after, to look at lessons
 9       to be learned?
10   MR HAMILTON:  It is on a broad front.  I am stuck, unless my
11       colleague can help me out, on the specifics in relation
12       to employment matters, but I can think of matters in
13       other areas where yes, there have been considerable
14       debriefs, and in fact papers produced, so that the next
15       people who come along finding themselves in that
16       position are going to have some steer afforded to them.
17   SIR ANTHONY BURDEN:  Forgive me, we have been told in other
18       submissions that there is a blame culture.  Can I just
19       get this into perspective, that these are positive
20       meetings, intended to move the organisation forward?
21   MR HAMILTON:  Yes.
22   SIR ANTHONY BURDEN:  They are not within a blame culture,
23       just looking for sort of scapegoats.
24   MR HAMILTON:  No, they are positive meetings.  I see the
25       context of the blame culture slightly differently,
 
    59
 1       I think it is connected with the real problem that
 2       effectively, in many cases with police officers, if
 3       somebody has erred, one strays quite quickly into the
 4       formal investigation mode.
 5   SIR ANTHONY BURDEN:  Yes, okay.  Would you, in your opinion,
 6       as a department, as a directorate, see value in any
 7       greater involvement in lessons learned procedures.
 8   MR HAMILTON:  I think it certainly would be worthwhile,
 9       because my take on that would be that in most of the
10       cases where that is worthwhile, there has already been
11       some legal input, and where there has been no legal
12       input at all, it usually, I guess, would be a fairly
13       minor matter.
14   MS BURROWS:  I think that is correct.  What we do try to do
15       is to feed that learning into the training for personnel
16       managers.  For example, we cover employment tribunals,
17       and, as it were, it is the practice and procedure side,
18       but also, as it were, presenting a mock tribunal, and
19       using the sorts of issues that have arisen.  So that is
20       how we tangibly try to feed that learning back into the
21       organisation.
22   SIR ANTHONY BURDEN:  Thank you.  Can I extend an issue that
23       my colleague Miss Weekes was dealing with?  She spoke
24       about internal mediation, the potential for internal
25       mediation.  Could I have a look at external models for
 
    60
 1       a moment?  Because we have in front of us
 2       recommendations that there ought to be some external
 3       resolution model in place, and these vary, I must say,
 4       in terms of the suggestions made.
 5           We are looking at two issues.  Firstly, the final
 6       stage of some form of ombudsman.  But just as important
 7       to us is bringing something alongside in what we might
 8       term the sort of "golden hour" scenario; you get this
 9       window of opportunity to resolve it, and then after
10       that, people tend to lock into positions, and then it
11       becomes difficult.
12           Is there a model in your view that you feel would
13       more likely be successful than others, if we were to go
14       down this path?
15   MR HAMILTON:  I think if one is looking at the golden hour,
16       one is probably looking at persons appointed internally,
17       who know the scenery.  I mean, I am aware of some
18       external firms, and not necessarily lawyers, I think,
19       who will fly you in, as it were, a personnel expert in
20       order to provide you with assistance, and it may start
21       with a duty call, as it were, so that you can get
22       an early steer.
23           But the police family is an unusual one, and I think
24       that if one were going down this path, one really would
25       benefit by having someone who knows the territory, and
 
    61
 1       that, to my mind, would involve a police officer.
 2   SIR ANTHONY BURDEN:  I mean, in my experience, internal
 3       mediation has its difficulties, because there are
 4       obviously suspicions around the motives of individuals
 5       concerned.  It is the independence, I suppose, that the
 6       external brings which may be attractive.
 7   MR HAMILTON:  Absolutely right.  In a sense, the golden hour
 8       perhaps is that the role might be of a facilitator
 9       rather than a mediator, if that is not being too subtle.
10   SIR ANTHONY BURDEN:  Sure.
11   MR HAMILTON:  I think I alluded earlier to the difficulty
12       that if you have got an in-house coterie, as it were, of
13       mediators, they may come to be seen as aligned with
14       management.
15           Perhaps, and I say it is only perhaps, the view that
16       might be taken of the individuals is relative to how
17       early they are brought in.  I think the later they are
18       brought in, the more there is the risk of their being
19       seen as a tool of management, ultimately.
20           The other thing that I just sort of pick up from the
21       question as well, one hears "mediator", "ombudsman",
22       "arbitrator" used almost interchangeably.  But, of
23       course, the difficulty with an ombudsman, and indeed
24       an arbitrator, is that they will end up delivering
25       a judgment that one party will not be happy with,
 
    62
 1       whereas ideally a mediator will encourage the parties
 2       and get them to appoint a resolution where both are
 3       happy or relatively happy at least.
 4   SIR ANTHONY BURDEN:  Yes, thank you.  Any recommendation to
 5       an organisation such as this, of course, would have to
 6       have attached to it a costing.
 7   MR HAMILTON:  Yes.
 8   SIR ANTHONY BURDEN:  Could I ask, in terms of costing out
 9       what employment tribunals cost the Metropolitan Police
10       Service, are there true figures available that show
11       costs or legal service costs that could contribute to
12       the debate?
13   MR HAMILTON:  Not entirely, no.  I can provide a figure for
14       what it has cost to provide the service this year for
15       the lawyers' costs.  We do not this year, but we will
16       from next year, have split the counsel's fees from the
17       general pool, so we will know how much that is.  But
18       excluding counsel's fees, internally, it will have cost
19       us in the order of about £500,000, half a million
20       pounds, to service all the employment tribunal work.
21           Yes, we have had, as you are aware, some very big
22       ones on in the last year, which may inflate the figure,
23       but it is in that sort of ballpark.
24   SIR ANTHONY BURDEN:  In that sort of region.  Thank you very
25       much indeed.
 
    63
 1   SIR WILLIAM MORRIS:  Thank you very much indeed,
 2       Sir Anthony.
 3           Mr Hamilton, that concludes the questions from my
 4       colleagues and myself, but before you leave us, can
 5       I just remind you that I did indicate in my opening
 6       statement that you would be offered the opportunity to
 7       make a closing comment if you so wished, and if you do,
 8       this is your moment.
 9   MR HAMILTON:  Well, it is just this: the increasing use of
10       mediation in employment tribunals we see is to be
11       greatly welcomed.  We hope it will provide greater
12       opportunities for seeking resolution of disputes; it
13       provides some satisfaction at least to both claimants
14       and the service.
15           But attached to that is the point that not every
16       claim, in our view, and we acknowledge there can be
17       other views, should be compromised.  Because the risk of
18       that is that one demoralises those staff who have
19       wrongly been accused of discriminatory behaviour; and
20       one risks giving the message that those who are doing
21       things properly will not be supported, but mediation has
22       to be the way forward.
23   SIR WILLIAM MORRIS:  That brings me to my closing comments.
24       Can I just say that as with all other witnesses, it may
25       be that when we have heard from others, we may wish to
 
    64
 1       hear some more from your good self, in which case we
 2       might either ask you to write to us or ask you to come
 3       before us again.  If we so decide, obviously we will do
 4       it in a way which minimises any convenience to you.
 5           For the moment, all that is left for me to say, on
 6       behalf of my colleagues and myself, is to thank you and
 7       your colleague for the contribution you have made to our
 8       Inquiry so far.  Thank you.
 9   MR HAMILTON:  Thank you. (Pause).