Important note: This is an archive of the website that was formerly at www.morrisinquiry.gov.uk. It is being hosted on the MPA website for archival purposes only and may contain out-of-date information.

This resource is from the Transcripts section. This section contains a transcript of the public session with Mr David Hamilton on 30 March 2004.

Sections available here:

• Transcript of public session: Mr D Hamilton, Director of Legal Services, MPS and Ms S Burrows
  • Questions by Sir William Morris
  • Questions by Miss Weekes
  • Questions by Sir Anthony Burden

This transcript is also available with original line and page numbering.

Transcript of public session: Mr D Hamilton, Director of Legal Services, MPS and Ms S Burrows

Tuesday, 30 March 2004
10.30 am

Sir William Morris: Good morning everyone. Good morning, Mr Hamilton, a special welcome to you, and indeed to your colleague.

Can I start by saying thank you very much indeed for accepting our invitation to attend the Inquiry, and to give evidence, and for letting us have your written submission, which we found extremely helpful.

I do appreciate that for some of our witnesses, any process of this nature may seem a daunting task, so I thought it would be helpful if I set out briefly how we propose to conduct the hearing this morning.

But first let me introduce myself and the other members of the panel. I am Sir Bill Morris, recently retired General Secretary of the Transport and General Workers Union, and I have been asked to chair the Inquiry. As you can see, there are two other members of the panel: Sir Anthony Burden, who recently retired as Chief Constable of South Wales Constabulary, after a long and distinguished career in the police service; and Miss Anesta Weekes QC, who is an eminent barrister, and who sits as a recorder and part-time chair of employment tribunals. She was also counsel to the Lawrence Inquiry.

Mr Hamilton, as you know, we have been tasked by the Metropolitan Police Authority to conduct an independent inquiry into professional standards and employment matters in the Metropolitan Police Service. Our task is the MPS as an organisation, and not the individuals who make up the organisation. The inquiry we are conducting is inquisitorial, and not adversarial by nature or character.

We are very keen to enquire into the issues raised by our terms of reference so we can make appropriate recommendations for further good practice, rather than concentrating on making criticisms of the MPS as an organisation, or in particular, the individuals within it.

To help us in our task, we are keen to hear from all our witnesses, not just about what is wrong with the MPS, but also what is right with it; most importantly, any suggestions in putting matters right.

Let me say that a transcript is being taken, so that we can have a proper record of the evidence given by all our witnesses. This will be posted on our website later today.

At the end of these introductory remarks, I will lead on the questions to you, followed by my colleague, Miss Weekes, first, and then followed by Sir Anthony Burden, and any supplementary questions that I might find necessary.

At the conclusion of our questioning, I will offer you the opportunity for a brief closing comment.

In your written submission, which will be posted on the Inquiry's website following your evidence today, you have set out for us the following information: first, your role and responsibility as director of legal services; the structure and work of the department of legal services, and its relationship with the Metropolitan Police Service.

You have also indicated some views about the conduct of employment tribunal claims within the directorate of legal services. You have given us your views on Fairness at Work, and an explanation of your role in developing relevant policies.

We would like to ask you some questions about the material in your submission and seek your views on a range of matters that are of interest to us. Before we raise these issues, however, for the benefit of the transcript, I wonder if you would mind formally introducing yourself and your colleague to the Inquiry.

Mr Hamilton: Certainly. I am David Hamilton. I am the director of legal services to the Metropolitan Police. My colleague is Miss Sandra Burrows, who is an assistant director within my department, and she heads the group that has conduct of all employment and employment tribunal and misconduct matters, both on the police staff side as well as the police side.

Sir William Morris: Thank you very much.

Questions by Sir William Morris

Sir William Morris: Let me start, Mr Hamilton, by looking at the role of the legal service to the Met. When Lord Harris gave evidence to us, he referred to a perception within the MPA that in too many cases, the legal service and indeed the legal advice provided by your directorate, was overtly defensive, with an emphasis on defending the operation and defending the organisation at all costs. Do you consider his comments fair?

Mr Hamilton: I certainly do not consider them accurate, and I am not entirely clear on what evidence he comes to that assumption. Obviously, in our role in handling employment tribunal work and litigation, an early matter for us is an assessment of whether a claim is well-founded or not, and we try to provide material to the Metropolitan Police as client, as to whether it is.

That is not based on an assessment by us alone: we gather evidence, we see witnesses and take statements from witnesses; where it is necessary for us to see experts, we obtain evidence from experts. We obtain the input of counsel, that is counsel at the independent bar; and we provide an assessment of what the risks around the case are, evidentially, and what the strengths and weaknesses are.

Like any solicitor in private practice, we advise the Metropolitan Police and the Metropolitan Police instructs me what it wants to do. So the decisions are not mine, and the picture that we paint, I would not say, is overly defensive; the picture we paint or try to paint is an accurate picture of what the situation is that the Metropolitan Police is having to face.

Sir William Morris: Just taking this sort of solicitor/client relationship half a step forward, do you see it as a solicitor's job to advise in his or her client's best interests, obviously, which includes advising on the law, but also on practical considerations; and do you follow that course as best practice in respect of your duties and responsibilities as you see them to the Metropolitan Police Service?

Mr Hamilton: Our advice is not solely hard law, and I think I have indicated this in the submission. We are able to express a view; we are not necessarily always the best persons to express a view as to the wider implications of contesting or settling a claim.

For example, publicity is a matter which may bear quite heavily on the Metropolitan Police Service; I may be able to express a view as to how that may play out, but in the end, what I am there for is the evidential assessment. There are others who are probably better placed than I am to take into account those wider considerations.

I mean, if I could, in the context of the assessment and my role, just paint you a picture of what has happened with employment tribunals this year that may assist in your examination of the matters that concern you: up to last night, we had during the current financial year, from 1st April, received 59 new employment tribunal claims.

Now during the same year, 2003 to 2004, 56 claims were withdrawn – that is not the 56 out of that 59, because some will belong to earlier years; but 56 were withdrawn, eight were struck out, 20 were settled. 11 were taken to a fully contested hearing: nine of which were successfully resisted by the Metropolitan Police, two of which were not, one of those is under appeal.

So you can see from those figures that large numbers are withdrawn, significant numbers are settled and a relatively small number compared with those other two numbers are actually contested.

Sir William Morris: An impressive record, some might say, but are we looking at this issue purely on the basis of settlements from a point of view of winning or losing; what about, if you like, the reputational impact on the Metropolitan Police Service?

Mr Hamilton: There is a severe reputational impact, and I do not regard – I chose my words carefully, I said "successfully resisted", I think. I do not regard successfully resisting an employment tribunal claim as a win in that sense, because there are no true winners.

But nevertheless, bearing in mind the reputation, one of the things we do when we receive an employment tribunal claim is to front load our gathering of information, so that an early a picture as possible can be presented to the service as to whether or not this is a claim that looks as though it should be settled, compromised as quickly as can be, or whether it is a claim which is short on merit, or has other difficulties which require that it be investigated further, possibly with a view to taking it through to a hearing.

In the middle there, one can also have a situation where we have got no particular difficulty in advising that a case should be settled, but there may be some difficulty in arriving at an amount that is agreed between the parties that will settle the case. Normally, that is achieved once we decide that a settlement is advised, and the client accepts that advice.

Sir William Morris: Just moving on, as a major public institution, do you think it is the role of the Metropolitan Police Service to lead public policy on issues, employment issues such as discrimination, diversity and other social policies?

Mr Hamilton: It is very important for the police to do that and the Metropolitan Police as the biggest of the services, and in the context of what it needs to achieve, in terms of diversity, ethnic minority recruitment and so on, and I think you have heard from other witnesses as to the sort of matters that it becomes engaged in; so the short answer is yes.

Sir William Morris: But bearing in mind the point that I made earlier about reputational damage, and also in the light of what you have just said about the importance of institutions like the MPS leading public policy, can I just raise with you the concept of public policy and discrimination which has been with us, in terms of legislation, since the 1976 Act?

With the inevitable consequences for statutory change, what was the point of fighting the Liversidge case?

Mr Hamilton: The Liversidge case, of course, was not a Metropolitan Police case.

Sir William Morris: No.

Mr Hamilton: The point, as I understand it, and I will look to my colleague to fill in any gaps I will leave, but the point, as I understand it, was a point that was raised by the tribunal itself, whether at first instance or on appeal I cannot tell you, but it was a point that the tribunal itself raised, and then it invited argument about it. And as we know, the conclusion was that the law as it then stood gave no jurisdiction to an employment tribunal to make any award against a chief officer of police in relation to acts of discrimination carried out by his or her officers.

Sir William Morris: But we have heard evidence, in the context of this Inquiry in relation to the Metropolitan Police, that they thought it was right that it should have been contested.

Ms Burrows: Could I perhaps assist there? I do not think it was so much a question of contesting the issue, but the fact was that there was no choice about the matter.

The straightforward issue for the employment tribunals was whether they had jurisdiction to hear the claim or not. A comparison might be a police officer who brings, as sometimes is the case, an unfair dismissal claim in an employment tribunal. Inevitably, that is a claim that the tribunal cannot entertain, because it has no jurisdiction.

So it was not a question of our deciding one way or the other about the matter, but rather accepting that the tribunal had no jurisdiction. The position that that led applicants into was that they had to seek to amend their claim, to put it in a different way. The options that they had available to them were to put forward alternative arguments, based upon the chief officer's direct liability, and that was a course that a number of applicants chose to take.

It then became a matter for each individual within the employment tribunal whether they accepted the application to amend or not.

Sir William Morris: However, in the light of the amendment to the Race Relations Act, the question is: would the Metropolitan Police Service have preferred the matter to have been left the way the Court of Appeal saw it?

Mr Hamilton: It would have been infinitely preferable for its effect if the decision had not gone the way it did, because what it meant was it put large numbers of applicants in limbo; in a position where the organisation could not, even if it wanted to, I would suggest, make a payment, because there was no jurisdiction for an award to be made. In effect, as a matter of sort of financial propriety I would imagine, no basis upon which a payment could be made on an ex gratia basis.

Sir William Morris: In your submission, Mr Hamilton, at paragraphs 83 to 84, you mentioned various matters about the relationship between the employment tribunal unit and indeed your directorate. It has also been raised by some witnesses, and questioned, whether the employment tribunal unit is based in the best possible location, which is the directorate of professional standards.

Do you think that it would benefit from being located elsewhere within the Metropolitan Police Service, outside of the Department of Professional Standards?

Mr Hamilton: I think if there is a perception that this is a matter of concern that it may be better situated outside the Department of Professional Standards. I know that you will hear from Esme Crowther this morning who heads that unit, but as I understand it, she and the members of her unit are HR professionals; they are actually situated in the same building as HR staff, rather than TPS staff, and in addition to what is revealed in my evidence, they provide guidance to managers who are seeking it on the handling of employment differences at the stage before it gets into sort of formal Fairness at Work.

So there would be a certain consistency, if I put it that way, if they were actually to be attached to HR.

Sir William Morris: So you would support a structural change for, say, HR, ET and perhaps diversity; could you give us your view on that?

Mr Hamilton: It is not for me, but I would not have a problem with it.

Sir William Morris: You have a view; it is not your decision, I accept that, but if you were consulted –

Mr Hamilton: I would support it.

Sir William Morris: Just taking that half a step further, and assuming we had this magical shift of HR, diversity and ET, would you see that new directorate, shall we say for the purpose of the exercise, having its own legal back-up to support the ET cases, leaving you with litigation?

Mr Hamilton: I have actually had this debate, but not recently. The third group that Miss Burrows heads was actually formed as a discrete group approaching five years ago. Before then, the individuals as lawyers who were handling the employment tribunal cases were part of a bigger group that also did other things.

I had a debate which in fact I generated with the then head of personnel, as was then called, because I thought that the importance and the volume of the work had grown to the point where we should have a discrete group, and that we should have somebody senior heading it.

Now a debate was had about whether it was sensible or profitable to have lawyers sited, if you like, within the HR department. I do not actually see that there is a benefit in that. I am neutral in the sense that they work fairly discretely on the areas that they are covering, but they do need an understanding, which might be lacking if they were separated off from other lawyers more generally, of civil litigation; we handle some employment actions, for example.

There is this issue about misconduct that would have to be separated out, and I think that to use the cliche word, it would not be a good idea to operate too much in silos. Those who are handling the employment work now in the police will need – and you will have heard something along these lines, I guess; they will need a good knowledge and probably an increasing knowledge of the police misconduct system, and indeed, this group has that knowledge, and will acquire the knowledge of the new system by reason of the fact that it also handles misconduct issues.

I do not see any difficulty in a lawyer dealing with those aspects of the matter. We do not, incidentally, have the one lawyer handling both the ET and misconduct, if the two coincide, for obvious reasons.

Sir William Morris: Well, anticipating that you might not have liked model one, let me offer you model two. Why not put the legal directorate and have a directorate of legal services, ET, obviously, as a unit within that, diversity and HR, all people related issues? What is wrong with that?

Mr Hamilton: Nothing wrong with it, I think I would say, but again, it is a case of where you hive the work off. The work that my directorate delivers is probably in total about 65 to 70 per cent the combination of work that we do for DPS, which includes the civil action work, this work that we are talking about today. Another 30 per cent that is a range of material, across anti-terrorist work, disclosure and all matter of other things.

Now if you are delivering within what the Metropolitan Police wants, if you are delivering the totality of the service, you get a better cross fertilisation of experience and expertise if you have your unit in one place.

We could certainly site a unit in HR and other units elsewhere, but in the end, all of that needs to be brought together and managed so that you have the cross fertilisation, as I said, and also, it helps towards a broader consistency of approach.

Sir William Morris: You see, our terms of reference obliges us to look at workplace issues, and in doing that, we put people at the centre, the centrality of workplace issues are people. Part of the evidence that we have explored is the fact that we have got a number of people-centred services within the MPS segregated, and we do not understand how you can have joined up policy development and implementation in fragmented compartments.

We have been searching very hard to find what has been described as the golden thread which runs through the whole concept of policy development, policy implementation, monitoring and delivery; because at the end, what we are about is to support the operational frontline, which is the officers. We are searching for that golden thread.

Mr Hamilton: I mean, to use your analogy, I think the second model you have been asking me questions about would actually fragment the legal service.

We are there, the organisation knows where we are; it knows what we can deliver. Life being what it is, more and more problems tend to come in where you are using expertise from more than one group. You can have a crossover obviously between employment law, issues around data protection, which you are getting with freedom of information and so on, and we get a crossover sometimes with civil actions and ETs.

Personally, I think if we were talking about a fragmenting – I will use the word again – of the legal services, producing a cohesive service to the Met would actually become more difficult rather than less.

Sir William Morris: That assumes you are satisfied with the way things are working now; are you?

Mr Hamilton: Well, one is never satisfied that one is getting everything right, but my personal view is that that change would not actually produce tangible benefits.

Sir William Morris: Okay. I will kid myself that model one had solicited some support.

Mr Hamilton: Guardedly!

Sir William Morris: I see footsteps of retreat. We will move on. It is interesting, in terms of the role that you see in terms of the directorate of legal services; do you see that role as a senior member of the MPS management team, sharing collective responsibility for what happens in the organisation, or merely an advisor on the law; how do you see the role of that directorate?

Mr Hamilton: There is an element of both, but the primacy has to be with the second. The Met has a whole wealth of experience across a whole range of matters, and I am able, when we need policy shifts – I think I can give one example, not in this field, but it does it quite well: I am able to, if you like, get into the Met and cause that to happen. I have access to the top whenever I want it. The Deputy Commissioner, you have seen from my submission, is my line manager; the Commissioner always makes himself available to be seen if I ask.

But nevertheless, the primacy is around the role as a lawyer. We are involved, and again, it is indicated in the submission, in policy formation, but usually, unless it is directly within an area for us, a policy will become discussed with recognition of legal implications and then we will feed into that.

The example I was going to give you, which made some sort of sea change in the way that the organisation reacted to civil claims, was when the Woolf reforms to civil procedure were introduced. Because that change involved a much quicker and more detailed upfront response to a letter of claim, which required you, within a short time limit, three months, to indicate whether you accepted the claim, or if you did not, to indicate why not, and to provide disclosure of core documents. It required a significant change and improvement, I might say, in the way in which we could get information from around the Met when we had a claim in, and that involved professional standards at a high level.

I was interacting initially with the then Deputy Commissioner, and then with the Deputy Assistant Commissioner on his behalf, so as to bring about the necessary changes, which were ultimately published and enabled us to comply with these requirements. So that is an example, albeit sort of tied into the Met being able to provide an effective legal response as required by court rules, but nevertheless, it involved policy changes as well.

Sir William Morris: Okay. In your submission at paragraph 16, you say, and I quote:

"Whilst the MPS is a caring and ethical organisation, it should not be or become a soft touch."

Does that mean a win at any cost culture?

Mr Hamilton: I do not think that is what it says, and it is certainly not what I mean.

The reference to soft touch I have seen, not in the recent past, but I have experienced a situation where civil claims were not properly defended. It was too much difficulty to get the information available; the lawyers could do so much in trying to track down information, but in the end, if you were dependent on people searching out documents and so on, it was not happening. A view was taken that it was cheaper and quicker to pay these cases off. Well, the inevitable happens then, you tend to attract more, and more speculative, claims.

So there clearly is a balance to be struck, but if one takes the view that on every occasion, and I am hypothesising: if one takes the view that on every occasion an allegation of discrimination is made that the only thing to do is to pay compensation without having a view to the merits, then I think that you send several messages out to the organisation.

You will tend to undermine the managers, who have been doing their best, and maybe, in my example, have been handling matters properly. You will tend to attract additional claims: some of which may have some merit; some claims – always some claims will have merit, some will have some merit. You will be expending money that could better be spent on policing, which is what the budget is there for. So that is the context in which I made that comment.

Sir William Morris: I suppose that there is always a balance to be struck somewhere, but let me just share with you what the picture painted by the Metropolitan Police Federation was. Their picture is that the directorate of legal services is hostile to the interests of MPA/MPS employees. They say that before September/October 2003, the MPS always appeared hostile to any settlement discussions; letters received from the Force's solicitor in response to attempts to settle are often aggressive and aggravate their members. That is the picture now from the Metropolitan Police Federation.

Mr Hamilton: I am going to ask my colleague to answer that, because she is nearer the coal face than I am, as it were, but I will say this, that my experience as part of a mirror image is that it is often very difficult to get any response from the Federation's solicitors when one is trying to settle. But Sandra?

Ms Burrows: I would have to say that my reaction to that is one of surprise, bearing in mind the number of cases that we have settled during the current financial year, to which Mr Hamilton has already made reference.

I think it is important to emphasise that even once an employment tribunal claim is issued, we are always keen to see if resolution can be achieved.

I would not see that resolution as necessarily involving the payment of compensation. I would say that in employment tribunal claims, I think that there are other issues which are most often far more important. At the end of the day, it is about maintaining the employment relationship and about an individual feeling comfortable to return to the workplace, if he or she is by that stage off sick, or otherwise rebuilding relationships.

To that extent, the lawyers who work within my group are always alive and would actively participate in any request that other issues be looked at, and resolution achieved.

Indeed, it does seem to me that that is borne out by the number of settlements that we have reached during that period. I know that the comment has been made that frequently, the legal process tends to lead away from settlement, but our experience is different.

Sir William Morris: We have had other comments, and I will just offer the last one – other comments indicate that it has been suggested that there is, if you like, a strategy in the legal department which fosters delay, prevaricates, seeks to undermine the morale of applicants by seeking constant postponement; I have had a look at some of the applications for postponement myself at the tribunal, and it is concluded by an attempt to demoralise the applicants.

Just one final question, taking those – just looking to the future, do you think that there is a key somewhere that could be applied, in a fair and robust way, but would restore the confidence in the department, recognising that every tribunal case represents a failure on the part of someone, principally management, and the concept of reputational cost? So if you can leave this Inquiry with a view as to how confidence can be restored, I think we would see it as an immensely valuable contribution.

Mr Hamilton: If I take the points in the order, I think, in which they were raised: anyone who has been involved in litigation on an individual basis, whether as a claimant or a defendant, and it does not matter what it is, it might be a debt claim, a neighbour dispute, employment tribunal, will understand the level of anxiety and upset that comes when the letter comes thudding on to your doormat with the particulars of what the other side are saying.

Not only is that upsetting, but the deliverers of that bad news and upset are the lawyers. I can fully understand why some people – and particularly, of course, we also have applicants in person, which are more difficult to deal with. I can fully understand how the feelings of demoralisation and so on are engendered; that is point one. There is no strategy or intent to do that, and I think it is fair to say that feelings of that type that are engendered may, to some degree, be an inevitable by-product of the fact that the proceedings have been brought.

In terms of strategy, delays, the employment tribunal sets the timetable. There are situations in which it is thought necessary to apply for adjournments or further time. This can happen for a variety of reasons, but if the tribunal does not consider those reasons are justifiable, then it will not grant the adjournment; it is as simple as that.

Of course, there are some other situations, particularly at the point where we file grounds of resistance, where extra time may be asked for, because the time limit of 21 days is very short and it may actually serve the interests of the case better to get more detail in at the start.

I think, a personal view, and I will ask my colleague if she has anything to add to it, the logjam of Liversidge was unhelpful, because it meant that as far as individuals saw, here was some legal thing out there that was causing their claim to go on ice for a considerable period; the longer a matter is unresolved, the greater the resentment that goes with it, quite naturally.

I think that was very unhelpful, and I think now that we are over that, that, I hope, will assist – I hope it will assist in more people finding that claims are resolved more quickly, and that in itself will be a feature that will add to confidence.

Just before I check whether my colleague has anything else to say, I might also add – and I think it is relevant to the general scheme of things – that I have a very experienced team of employment lawyers, but many of them are quite junior in service to the Metropolitan Police. As I have pointed out in my submission, they come from a range of backgrounds of experience: one from commercial; two from local authorities; one from a trade union, a qualified mediator.

So I simply say that to try to give you some reassurance that there is not some sort of dyed in the wool approach that means that we try to defend at all costs.

Ms Burrows: I would certainly agree with Mr Hamilton's comments about the effect of the Liversidge decision. That is certainly not something that we would ourselves have wished for in terms of the delay that it caused.

I do feel that what in fact was a total of a three year period that was affected by that decision is atypical, in terms of the delays which would ordinarily be encountered.

The situation where delay otherwise tends to occur is where there is an ongoing misconduct investigation under the Police Conduct Regulations. That sometimes does lead to delay, and we would wish that those investigations could be swifter.

That said, employment tribunals are always very concerned about granting stays; understandably, they do not grant general stays. They do impose timetables, and in turn, the lawyers are at pains to point out to an investigating officer what the tribunal's expectations are.

That category of case aside, it seems to me that most cases do proceed quite swiftly to a hearing. There was a period when there tended to be quite considerable delay in matters being listed for hearing; it now appears to me that that is no longer the case with the employment tribunals in London.

If there is a case where there is no ongoing investigation, it is listed for hearing within a relatively limited number of months. So again, I am somewhat surprised that that is the perspective that the Police Federation has on this issue, and I think it may be heavily influenced by the atypical results of the Liversidge decision.

In terms of restoring confidence, I think mediation will be helpful as a way forward for the future, and we have mentioned in our statement that at the moment, the government is looking at this whole area. There was a consultation exercise at the close of last year, and I know that a paper has now gone to Ministers.

I think mediation is an extremely helpful tool in keeping cases away from the tribunal and focusing on the issues that really matter, in terms of ensuring the ongoing productive nature of the employment relationship.

But I would again emphasise that I would not see that in terms of always giving applicants payments of compensation. It is a question of looking at the broader issues. There will be claims which are not justified, and that is not to say that applicants do not believe genuinely that they are issues of concern to them, and I think that is the benefit of mediation, that it enables those perceptions to be examined, and the reasons to be examined.

I am hopeful that in the future, mediation will be used more broadly in employment tribunal disputes. It is strange in many ways that employment tribunals have, to some extent, fallen behind the other civil courts in the use of mediation as a tool, but I think also, it is important to say that where claims are unjustified, it is important to give support to managers who have acted correctly, to demonstrate, in fact, that the organisation is moving on and that lessons have been learned, and that indeed, the diversity training that has been delivered has had an impact.

So there are two sides to this: of course, there is the position of applicants which – clearly you have heard from applicants, and I would agree that exposure to the employment tribunal process will never be a happy one for all the parties who are involved, but there is another side, and I think that is something that the organisation does need to focus on in giving appropriate support where people have acted properly.

Sir William Morris: Thank you both for that. I do not want to labour the point, and please, there is no need to answer, but you might just reflect whether it is necessary, as you have put it, to front load the information gathering right at the start, which in itself, quoting your own words here, might be a contribution to delay. But that is a suggestion; I will leave that.

Right, that concludes my questions, and moving on, I will just ask Anesta Weekes to pick up her questions that she wants to put to you.

Questions by Miss Weekes

Miss Weekes: Good morning to you both. Can I please go back to the topic of settlement and compromise agreements? I am very happy if either of you answer. I am particularly interested in the context of what you have already said on resolution to discuss the role of HR. Does HR have any role at all in settlement proceedings within the Metropolitan Police?

Ms Burrows: Ordinarily, as arrangements exist at present, HR are outside the direct client chain. However, and I am sure you will hear this from Esme Crowther, when a decision comes to be made in respect of the settlement, there is wide consultation with other parties within the organisation, and I am sure examples will be given by Esme Crowther of where such consultation has taken place with HR, as indeed it does with the diversity directorate.

I know that both Esme Crowther and the other case holders in her unit are keen to obtain a broad range of views from all those who are stakeholders in the process.

Miss Weekes: One of the things that Assistant Commissioner HR told us yesterday is that he would welcome an opportunity for a much greater role of HR with employment tribunals, and indeed yourselves, because your role must go along with employment tribunals.

His suggestion is that employment tribunals could sit better with HR; how would that affect your position?

Mr Hamilton: I think I might have touched on this a little earlier.

Miss Weekes: Yes, you did.

Mr Hamilton: I do not see that it would affect our position – and that is quite narrow, our position – greatly at all, because the function that is being carried out by the employment tribunal unit, although attached to DPS, perhaps in many ways sounds more like an HR attached function than it does a DPS function. So for that reason, I do not think it would impact hugely.

Miss Weekes: The settlement procedure as outlined by – or rather, the procedure when one receives an employment tribunal claim, as outlined by Esme Crowther, because I know you have read her submission fairly thoroughly, is one that does involve that the ET claim itself, the ET1, is distributed to quite a large number of people, so they become aware that there is a claim. Is that necessary?

Mr Hamilton: I think it is distributed to the extent that it is necessary. Esme has – forgive me, Ms Crowther, that is a little informal; Ms Crowther has always been very astute and concerned, in my presence, about the confidentiality that clearly has to – and rightly attaches to an employment tribunal claim.

So I think you need to ask her, but my understanding is that the distribution does not go any further than those who need to see it. It may involve some senior managers; parts of it will involve witnesses. But I do not understand that it is distributed willy nilly, and I think it would be actually against what I know of how she actually handles these matters.

Miss Weekes: My question was not about the sensitivity of confidentiality, it was designed to flag up that the more people that become aware of an employment tribunal claim, perhaps the less likely it is going to be settled, because the information has gone round a large number of people. Is that a possible effect?

Mr Hamilton: I think that has –

Ms Burrows: I think the converse argument is that it is necessary in managerial terms that a borough commander, that a personnel manager be aware that someone who works, as it were, within their domain has brought such a claim, because inevitably, there will be welfare issues attached to that.

So whilst I understand the argument that you are advancing, I think in fact it is counterbalanced by that need to know, because so often, there are linked issues arising from that. Regrettably, there very often is a pattern of the individual then taking sick leave, and I think there is a need for those who are managing that individual to have the full picture of what has occurred.

Miss Weekes: What about this as an alternative, again it is designed to encourage settlement: if, as is usually the case, or sometimes is the case, the first that everyone hears about a difficulty is when the ET1 is launched, sometimes you hear about it before but not always; if HR and the individual, plus line manager, got together for a discussion, and indeed with yourselves, because there is always a legal issue when somebody lodges an ET, is that not a sufficient number of people then to talk about settlement, as opposed to it going wider?

Because in my reading of the papers, I do not see that as a method that has been adopted.

Ms Burrows: I think that is a situation that in the future will arise as a product of the dispute resolution regulations.

Miss Weekes: Which does not come in until October 2004.

Ms Burrows: That is correct. And obviously, as you will be aware, the procedure is still in draft form at this stage, but that will give a very helpful opportunity for that initial discussion and interaction to take place. That does encourage me in believing that in the future, there will be greater potential for these disputes being, as it were, drawn back from the employment tribunal process. It is a very valuable opportunity which does not exist at the moment.

The extent to which lawyers will be involved in that process, I think we will have to wait and see. Our position would be that of course, we will give advice as necessary, but the counterargument might be that it is better to keep the lawyers out at that stage.

I think it very much depends on the issues that are being raised, and obviously, we will give whatever advice is perceived as being helpful in that situation.

Miss Weekes: As it appears you have no criticism of what I have just suggested, and it indeed does mirror what might happen when the dispute regulations come into force in October 2004, hopefully, after our report has been lodged, but we cannot ignore impending legislation, then why do you think it has not happened before? Because I do not think my suggestion is incredibly bright, I think it is just a natural one that might have occurred. Why do you think it has not happened before?

Mr Hamilton: You will probably get speculation from both of us on this one.

Miss Weekes: I think the members of the public might think, well, here is somebody who has lodged, so he or she is unhappy; get together with the line manager, somebody from HR, and have a discussion. It does not matter that he has lodged, because perhaps he has to do that in any event, he or she, to protect their position, if there is not a resolution. Why does that not happen more often? Why does it need the legislation to make it happen within the Met?

Ms Burrows: It actually does happen. I mean, there are two different situations. Of course at the stage when an employment tribunal application is lodged, very often, the Fairness at Work procedure is simultaneously still being explored, but because of the three month time limit that is necessary for individuals to lodge their claims to stay within time – also, there is what we describe as an early case conference procedure, whereby again the interested individuals, in terms of the applicant's line manager, could be the personnel manager, it would depend very much on the particular circumstances, can meet together.

Certainly that is a process that as the client unit considers appropriate, we will become involved in, so in practice, that has occurred in the past. It has not occurred in every case, but certainly, it has occurred.

Miss Weekes: Is there room for making it an obligatory stage? Are there advantages or disadvantages to making it obligatory?

Ms Burrows: I think the issue arises as to whether in due course that will fit with the dispute resolution regulations and the need for an individual to actually, first of all, bring their complaint through the Fairness at Work procedure.

It seems to me that that will necessarily be a process which brings about really what you are talking about here, in terms of an opportunity for parties to sit down and talk about the area of concern.

Miss Weekes: Well, perhaps I should put it in another way. Let us forget about regulations, and think of the urgency, and all the good reasons that you and I know for early dispute resolution. There is no law about how you do it, and undoubtedly, the Fairness at Work procedure says, "Try and resolve it".

Why could there not be some sort of policy direction, because there are so many policies in the Met, that says, "Where there is evidence that somebody has lodged or is about to, the line manager, the person aggrieved, someone from HR must obligatorily attempt to settle, and a record is made of why that is successful or not"; is that a good thing or a bad thing?

Mr Hamilton: It may be a good thing if the policy is implemented. We have heard the expression "policy rich and implementation poor". Reflecting on your earlier question, I think that perhaps the reason some matters have not been referred to us is that there have been local attempts that had been hoped would be successful, they were not, and then we have moved into the ET.

Coming very near to the suggestion that it might well be an idea if there were a strong recommendation, at least, to those who are trying to resolve the dispute at an early stage to think about whether the lawyers might have anything to add to the process, because – Sandra will correct me if I am wrong, but I do not think there are that many cases numerically where we ourselves are involved at that stage, before, in fact, an ET lands or is about to land; is that fair?

Ms Burrows: That is correct. There are a certain number where issues are drawn to our attention where there are specific legal issues.

If I could return to your previous suggestion, I see nothing wrong at all with that proposal. The only thing I would add, however, is I do think there is a need to look at the whole picture, and therefore – really, taking up a point which was already made in the statement – I think there is a need to look at, as it were, the other side, and to investigate what those who are the subject of complaints say about the matter.

So absolutely nothing wrong with that proposal, as long as it is not merely focused on what the applicant himself or herself has to say about the matter.

Miss Weekes: Forgive me, Ms Burrows, it will not be if the team is the line manager, who may be the person complained about, and the client – let us say this dispute is between the potential applicant and the line manager and HR. So you are going to have both views.

Ms Burrows: Yes. All I would observe in that situation is that most discrimination claims in fact concern a very wide number of individuals, so it depends very much on the particular circumstances.

Certainly, if the dispute concerns the line manager, that is absolutely right.

Miss Weekes: But it might not be anything at all to do with discrimination.

Ms Burrows: Yes.

Miss Weekes: If it is a workplace conflict.

Ms Burrows: Absolutely.

Miss Weekes: All right, I think I have exhausted that for the moment. Mediation, which is just another arm of the topic of resolution, and I think you have mentioned it on two areas in your submission. But can I just deal, first of all – why do you think, so far, mediation has not attracted more activity in employment law, or let us be specific, within the Met? It certainly has been an almost now obligatory pick-up in civil proceedings, because of the Civil Procedure Rules.

Mr Hamilton: Absolutely right. It has generally, for reasons that I am not clear about, not had anything like the same pick-up in the employment tribunal sphere.

Now I would be guessing, but is it to do with the generally shorter timescales between the beginning of the proceedings and a hearing date arriving? Might it be to do with an issue that I have heard expressed as a real difficulty in the hands of many, in that it is difficult to get people round the table to mediate until they have got the whole picture.

When the whole picture involves disclosure, exchange of witness statements, and against a fairly tight timetable, maybe for that reason, if no other, mediation has not so far taken off in the same way as it has in other forms of litigation.

But it has really got its place, because of course a tribunal, in this sphere, can only award money. Mediation gives a much better chance of resolving on a much broader front. So I guess we are all at one in forming the view, and certainly we have a view that mediation has got a real place in the resolution of this type of dispute.

Miss Weekes: That is something that we are interested in exploring, because it is a good alternative to lengthy, expensive, legalistic approaches.

How do you see that we might promote it in our considerations? Because perhaps unless the Met see it as being practicable and workable, they are not going to adopt it; even if you have a policy, even if perhaps it is written into some regulation. So is it something that you might have to go away and think about and write up for us, as an additional addendum, or are you able to say practically how it would work and what form it would take, so that we could consider it as a proper recommendation?

Mr Hamilton: Personally, for me, I would like to go away and think about it, but I do not know if there is anything you would like to say about it now?

Ms Burrows: If I could add, at the moment, the Fairness at Work procedure does make reference to the use of mediation. I know that the whole scope of mediation and alternative dispute resolution generally is being looked at by Denise Milani of the diversity directorate. I know she has done work in putting forward a number of options as to how that might be used, as it were, as workplace mediation, not necessarily linked to employment tribunals at all, which is a relatively new area, but I do know that some organisations are using workplace mediation, seemingly to good effect. Denise Milani can certainly give very much more detail around that.

Miss Weekes: So who should we ask for that additional submission, which does not just include workplace mediation, but mediation attached to employment tribunals?

Mr Hamilton: It possibly is something to be worked out between us, I think. So Denise Milani is not here and finding herself volunteered –

Miss Weekes: I think she is volunteered, yes. But we would be very grateful for some additional information on that. Recommendations cannot just be made in the middle of the air, because they have no backbone.

You have mentioned that employing an outside mediator brings with it the possible difficulties of timing and expense, and that is obvious. But there is a big question mark about who should do the mediation, in addition to the workplace issues, if one was going to have it as a proper, almost obligatory, structure.

Again, is that something you can comment on now, or would that be something you would prefer to consider and put within the written document?

Mr Hamilton: I think we should include it in the written document. I am not sure whether there is a difficulty that extends beyond the potential volume. There are a number of organisations to whom you can apply, on relatively short notice, for a mediator. Yes, they come at varying costs, quite widely varying costs, but I think it is worth more consideration.

Ms Burrows: ACAS are at the moment, as we mentioned in our submission, running a pilot scheme for small employers. I am hopeful that they might extend that scheme. It seems to me that there is one potentially quite significant drawback in relation to workplace mediation outside ACAS, and that is that people may feel inhibited in having frank discussion, for fear that records, notes of that meeting will subsequently be disclosed in employment tribunal proceedings. And as a matter of law, it seems to me that that is right; there is no automatic privilege that would attach. Whereas, of course, if ACAS are involved, it is a completely different situation, there is that protection. I think that is something I would expect the government to look at in this consultation exercise.

Miss Weekes: This is a thought of mine, so if you think it is nonsense, no doubt you will say so. What about the possibility of seconding an appropriate officer of an appropriate rank to deal with mediation, so that there is a properly trained mediator with police operational background and experience and knowledge of how these disputes can arise?

Ms Burrows: In principle, I do not see anything wrong with that proposal at all. It would depend on the extent to which it was acceptable obviously to those who are invited to engage in the process, because, of course, the whole point about mediation is it requires the consent of both parties.

There might therefore be issues as to whether that individual is truly independent. That is the only observation I would make. I do not know what the answer might be, but that is a potential difficulty.

Mr Hamilton: I would echo that. I mean, clearly the expertise of such an individual with their background is there, and they could be trained up in the particular skills that are needed, but the longer they are called in by the organisation to mediate, then the more likely and understandable it is that applicants are not going to see the individual as an independent arbiter.

Miss Weekes: Right, so perhaps the Met might have to spend the money and bring in the independent ones.

Mr Hamilton: Yes.

Ms Burrows: Unless ACAS do in fact decide to run a relatively low cost mediation scheme, which I am hopeful might be the outcome of the consultation exercise.

Miss Weekes: Because it is clearly important that if one is going to go down the route of any recommendation of mediation, the person who mediates is crucial.

Mr Hamilton: Yes.

Miss Weekes: Can I turn now to another aspect of dealing with resolution of disputes, and the role of representative groups and staff associations? I am particularly interested in the comments that you have made about the Black Police Association. We might want to go to your references to it, and it is at DSH 1/27 of your submission. I hope I have that right. It begins at the bottom of page 27, at paragraph 83.

If I may just paraphrase, because it may take a little bit too long to read, you are dealing there with the perfectly acceptable and understandable relationship between the client and the legal advisor, and your position and your client, who is the MPS, and the involvement of representative groups in that process.

What has happened here, moving over on to page 28, and going down to paragraph 84 – and I think you say it fairly – is that with good intention, a representative, in some cases, of the BPA have become involved, in order to represent the interests of the potential applicant, but it has touched upon the client relationship.

You have flagged that up here, have you not, in paragraph 84. You say:

"Although clearly well intentioned, this has resulted in some confusion on the part of lawyers on both sides. In at least one case where a senior manager reported to DLS that a particular applicant wished to discuss settlement, approaches to his legal representatives to ascertain his proposals elicited no response despite repeated approaches."

You then deal with the comment that is flagged up in the BPA's submission, where it refers to the tactics by the MPS, and indeed yourselves, to be " wearing down of opponents" by proceeding to hearings without regard to the possibility of settlement; that is their genuine perception and view of what is going on.

You say you flag up, you know, the professional position of a client and a solicitor. Now you would agree with me, would you not, that lawyers are there to advise, they are not there to run the show?

Mr Hamilton: Absolutely.

Miss Weekes: So you may take the advice of the solicitor, but make your own decision about how, and procedurally how, you go to resolve settlement; you do not disagree with that?

Mr Hamilton: I do not disagree with that at all.

Miss Weekes: So what is the nature of your criticism there?

Mr Hamilton: What is my problem? My difficulty is, and it is a practical issue, is that it seems to us that there are occasions where the BPA – it could be any union – intercede on behalf of the applicant with senior managers, and that will often be outside the employment tribunal unit; that a discussion goes on as to how things might be progressed, and that however it comes about, the possible route for resolution is not reaching the applicant's lawyer.

I can only communicate with the applicant's lawyer and not the applicant. Certainly our experience has been – we gave you one example, but I think there are others – that the communication link breaks, possibly, and again I will ask Sandra, because she has more detailed practical experience, because the applicant may see, and may be seeing quite rightly that the BPA is making more headway with a case than the lawyer is.

Miss Weekes: What is the remedy for this? Is it that the BPA do not communicate with the lawyer direct? Is the client not communicating with his or her lawyer direct?

Ms Burrows: I think the remedy is that there is better communication between the appointed solicitors and the applicant and, if it is the BPA, indeed the BPA, just so that there is a coincidence of understanding on the part of those who are actually conducting the legal proceedings.

Obviously, from our perspective, if an applicant has proposals that they would like to make in terms of how a particular case might be resolved, it would be very helpful if those came to us from the appointed lawyers, but in fact, what we are finding is that these approaches or at least information about these approaches, is reaching us via other individuals in the organisation, and then we are struggling to get that clarity from the appointed solicitors who themselves are unaware of what is happening.

That is a frustration for us, when obviously we are endeavouring to see whether resolution is achievable.

Miss Weekes: It would be a great shame to lose a settlement because people are not communicating.

Ms Burrows: Indeed.

Mr Hamilton: The worst.

Miss Weekes: Can I move to two short final issues? The lawyers in general: I am quite accustomed to people commenting about how successful or not successful using lawyers are; we are used to it now, we are used to being hit over the head by people.

A number of people, I think the Assistant Commissioner HR, has suggested, "Well, you know, really, using lawyers in conduct cases and disciplinary internal proceedings simply does not help; it is complicated, they raise long legal arguments about abuse"; you have referred to it in your submission.

His suggestion is: well, we just really should not have them at all and let officers also have access to employment tribunals. Do you agree with that?

Mr Hamilton: Only in part. I think the issue as we see it is this: certainly we would agree that the police conduct procedures have become very legalistic, the regulations speak for themselves, there are plenty of them, they are quite difficult to follow.

If one sits in on a discipline hearing which involves legal representation on both sides, where it will, where the officer is facing a potential dismissal or reduction in rank if found guilty, the whole thing has the feel much more of a Crown Court trial than it does of some form of internal disciplinary hearing.

So it is a quasi judicial process. If you give that up, so that you have what will be available to police staff if they run into discipline difficulty, ie no representation except by a colleague or a union representative, then you have to open up employment tribunals to the individuals and the officers in this example.

What I personally struggle with is the situation where one is dealing with public complaints and public complainants, because there is a system there that is designed to deliver reassurance to the public that public complaints are being properly handled; that provides protection also to the accused officer.

The complainant requires the protection, it seems to me, if the officer is represented, of representation in the terms that the complainant is not him or herself represented, but the case, on the matters about which the complainant complains, is presented by lawyers.

I struggle with how one bridges that gap; question, I suppose, whether there is a way of removing the internal matters that are not the subject of complaint into a system that is much less formal and more akin to what is applicable to police staff.

It is not easy, that is for sure, by virtue of the nature of the matters that come to be investigated. Some of the most serious matters, of course, just for clarity, investigated actually emanate internally, and are the sorts of things that may well become supervised, or in the worst cases, actually investigated and then pursued by the IPCC.

Ms Burrows: I would agree with that. I think the important issue here is the role of the IPCC. They are there to protect the complainant, that is their primary role. Mr Hogan-Howe pointed yesterday to the fact that in the context of criminal investigations, tactical complaints can be made, and therefore the view that he expressed was in that situation, police officers need protection, but it is important to remember that the IPCC's role is concerned with the complainant.

It therefore seems to us that there needs to be a process which is seen to be robust, and we do have difficulty in seeing how a process that did not involve lawyers would give that sort of necessary reassurance to the public, especially when one bears in mind the role of police officers; they are, and there is no escaping this, very different from other employees in their duties and responsibilities to interfere with the liberty of the citizen.

That is a hugely important issue, and therefore, it is likewise extremely important that if a complaint is made, it is seen to be investigated thoroughly, and that the hearing is dealt with robustly and fairly.

That seems to us to be a real difficulty in terms of adopting a different process, and indeed looking to something which is much more akin to the ordinary disciplinary procedure for employees.

Miss Weekes: So do either of you have an answer to the difficulty?

Mr Hamilton: No, is the answer. I think it would require a great deal of work, and it may be worthwhile, but a great deal of work and consultation in order to get where we want.

I guess there is a possibility, and this is only in a small way, that perhaps some of the formalities, and I will use the word "bureaucracy", might be addressed in guidance to be issued by the IPCC. There is temporary guidance at the moment, but I am the first to acknowledge that obviously, that has to operate within the framework of the regulations themselves.

Miss Weekes: My last point is a question about the assessment of the issues that are raised by officers in employment tribunal claims. You and your colleague have a wealth of experience running this legal department as to what it is that officers complain about when they lodge at an ET.

We know that they are entitled to lodge about discrimination, and we know from the documents that we have read that there are race and gender issues. But gender issues are more than race issues, is that right?

Mr Hamilton: Slightly, I think. I think it is a fairly even balance.

Miss Weekes: Can I just ask you for some help? Dealing first with gender issues, what is it that women are complaining about? Because undoubtedly, you must have assessed these claims, so you have a very good understanding of just what it is that is what I might call the overall problem that women have.

Ms Burrows: If I could say first of all what it tends not to be, I am very pleased to say, and that is explicit sexist language and conduct; that is now rare in terms of employment tribunal applications. It is much more likely to be around issues such as requests for part-time working; for example breast feeding in the workplace, and how that might be accommodated; around promotion processes, around postings.

I know that Esme Crowther in due course will be in a position to expand on that, but what I am saying is that these are decisions that affect someone's progress in the workplace, rather than explicit sexist behaviour.

Miss Weekes: Well now that you know and have that knowledge, what is it that you know the Met are doing about understanding that these are the complaints that women are making about their workplace?

Ms Burrows: Again, that is something that Esme Crowther will be able to assist with, in terms of how lessons are learned from the particular issues raised in employment tribunals. That is something which she takes back and action is taken in consequence of it, and those who need to be informed about the fact that this was a difficulty are indeed informed, regardless of what the outcome of the employment tribunal application might be.

Miss Weekes: Race issues; what is it that visible ethnic minorities are complaining about?

Ms Burrows: One issue that does feature quite frequently is decisions in relation to the misconduct process, that is something that features quite significantly.

Miss Weekes: What do you mean by decisions in relation to misconduct? What does that mean, in terms of race discrimination?

Ms Burrows: The initial decision that they should be the subject of an internal disciplinary investigation.

Miss Weekes: Is based?

Ms Burrows: The assertion is that that is discriminatory.

Miss Weekes: I understand, thank you.

Ms Burrows: In addition to that, again, issues around postings, opportunities for promotion; again, Esme Crowther will be in a position to assist. I am sure there are more.

Miss Weekes: And has there been a trend that white officers take cases of discrimination?

Ms Burrows: We do indeed have a number of claims of discrimination from white officers.

Miss Weekes: What is their complaint?

Ms Burrows: Primarily, it is the fact that they have been made the subject of internal disciplinary investigation when visible ethnic minority officers, as they assert, have not been, and indeed, they have named comparators to support that assertion.

Miss Weekes: Well, I will take up these issues with Esme Crowther. Thank you very much.

Sir William Morris: Mr Hamilton, your colleague, thank you very much indeed for the responses to the questions from Miss Weekes and myself. We normally provide an opportunity for our transcript writers to have a rest, a short break. So I propose to adjourn for about five to ten minutes, and then we will resume for Sir Anthony's questions. Thank you.

11.55 am
(A short break)
12.05 pm

Sir William Morris: Right, we will recommence, and I go straight on to invite Sir Anthony Burden to put one or two questions to you, Mr Hamilton.

Questions by Sir Anthony Burden

Sir Anthony Burden: Thank you. You have already answered the point – of course the Virdi case is within our terms of reference, if I can just ask for that to come up on the screen. Just to give you an opportunity, Mr Hamilton, to make any other comment, if you wish to, concerning the recommendations made about the department of legal services.

I think you did answer the issue when the chairman raised it with you at the very outset, but please ... (Pause). We have some difficulty getting it up.

Can I then perhaps refer to the hard copy? My apologies. It says here:

"The MPS should seek to address the perceived difficulties associated with the directorate of legal services, namely, one, the use of Virdi intervention strategies to limit the number of cases going to employment tribunals, and two, to ensure that the structure of decision making, where legal advice is a critical consideration, but not the final arbiter, is transparent to the MPA."

Now you did answer the second point, but I would invite you to make any other comment you would wish about that recommendation.

Mr Hamilton: The first part of that recommendation was seen by the organisation and, I will be frank, by DLS as something that actually was around the management before we got into employment tribunals. So that recommendation was actually taken over by, I think, HR, and they responded to the recommendation and responded in the terms of it as they were dealing with it, so I only had the second part.

Just for the sake of completeness, we gave a briefing, both face to face and with a short paper to one of the MPA members.

It is possible, I think, that one of the reasons why we have a difficulty with perceptions with the Police Authority is that we are, if you like, not in the frontline; when they are meeting with the MPS as client, they would be meeting, for example, the commander of DPS or whatever, which is point one, and I can think of an incident where they were concerned about legal advice that was given; I had a meeting on that occasion which involved the Commissioner and the Chair of the Police Authority, amongst others.

I offered a briefing to members, but I think the view was taken that there were going to be relatively few members who would actually be concerned, and it is the natural communication difficulty between telling a member or one or two members actually what you do and why you do it, and that reaching a bigger audience.

Sir Anthony Burden: Sure, thank you. Can I go on to another issue? We have heard various submissions and at hearings about managers not managing, and not managing in specific circumstances. Could I ask, and my colleagues have already referred to your wealth of experience as a department, in seeing these employment tribunal claims come through – can I ask you, and I know this is a subjective judgment, but is there an issue, do you feel, with the quality of management decisions being made in the organisation which is exacerbating the situation in the number of claims coming through?

Mr Hamilton: As you say, very much a matter of perception.

Sir Anthony Burden: Sure.

Mr Hamilton: I have little doubt personally that there are cases where we end up with a difficulty which turns into a tribunal because of an inability or unwillingness to manage the situation. I have no doubt about that.

I truly do not have a feel for how widespread that actually is. Statistics can be only the tip of the iceberg of course, but if this were very widespread, I would be asking myself, would we not see greater numbers of Fairness at Work applications, would we not be seeing a greater number of ETs?

This is a rhetorical question, but is there a question about the support that line managers are getting locally from personnel managers when a matter first comes up? And this I think rolls over to the point Miss Weekes has been making to us, about the possibility of a policy, so that the relevant people, including a lawyer, are brought into the picture.

And yes, out of all that, it must follow, as a matter of logic and perception but not much more, that there are some bad management decisions. Again, I do not know whether Miss Burrows wants to add from her perspective, or has anything to add.

Ms Burrows: I do not honestly feel that I can. I think it is too much a matter of perception, rather than there being empirical evidence.

Sir Anthony Burden: Yes, but in terms of moving the organisation forward, and the necessary feedback loop to improve management, can I just ask your views on the part played by your department, if any, or the encouragement given to your department to play a part in lessons learned? I know in your submission you refer to several initiatives that are underway, but we would like, please, to hear your views on that.

Mr Hamilton: I think it perhaps comes from two areas. We cover in the submission the fact that legal services provide an annual rolling training programme for personnel managers. It includes seminars; it also includes, on some matters, external input as well.

We provide a monthly employment law update which goes to the client unit and the HR directorate, and a monthly employment newsletter is produced. So these are all matters which feed their way back into the organisation.

The training programme for personnel managers covers a range of issues, but if I just highlight one or two, I think it can be seen that they will be in the area where difficulties can arise.

So key changes under police regulations; applicability of Disability Discrimination Act to police officers; attendance management, which is often contentious; general procedure and practice in employment tribunals, and so on.

On a short-term rather than a longer-term basis, we run a duty solicitor scheme – a duty lawyer scheme, I beg your pardon, because in-house barristers as well are employed by us – so that if a quick-fire view is needed, that is always going to be available.

Sir Anthony Burden: You have spoken – you have referred to diamond groups and gold groups that sit in the ascendancy of a case whilst it is being managed through. Are there debriefs where we could have done better, where we got it wrong – not from a legal viewpoint, from an organisational viewpoint. Is that commonplace that meetings would continue after, to look at lessons to be learned?

Mr Hamilton: It is on a broad front. I am stuck, unless my colleague can help me out, on the specifics in relation to employment matters, but I can think of matters in other areas where yes, there have been considerable debriefs, and in fact papers produced, so that the next people who come along finding themselves in that position are going to have some steer afforded to them.

Sir Anthony Burden: Forgive me, we have been told in other submissions that there is a blame culture. Can I just get this into perspective, that these are positive meetings, intended to move the organisation forward?

Mr Hamilton: Yes.

Sir Anthony Burden: They are not within a blame culture, just looking for sort of scapegoats.

Mr Hamilton: No, they are positive meetings. I see the context of the blame culture slightly differently, I think it is connected with the real problem that effectively, in many cases with police officers, if somebody has erred, one strays quite quickly into the formal investigation mode.

Sir Anthony Burden: Yes, okay. Would you, in your opinion, as a department, as a directorate, see value in any greater involvement in lessons learned procedures.

Mr Hamilton: I think it certainly would be worthwhile, because my take on that would be that in most of the cases where that is worthwhile, there has already been some legal input, and where there has been no legal input at all, it usually, I guess, would be a fairly minor matter.

Ms Burrows: I think that is correct. What we do try to do is to feed that learning into the training for personnel managers. For example, we cover employment tribunals, and, as it were, it is the practice and procedure side, but also, as it were, presenting a mock tribunal, and using the sorts of issues that have arisen. So that is how we tangibly try to feed that learning back into the organisation.

Sir Anthony Burden: Thank you. Can I extend an issue that my colleague Miss Weekes was dealing with? She spoke about internal mediation, the potential for internal mediation. Could I have a look at external models for a moment? Because we have in front of us recommendations that there ought to be some external resolution model in place, and these vary, I must say, in terms of the suggestions made.

We are looking at two issues. Firstly, the final stage of some form of ombudsman. But just as important to us is bringing something alongside in what we might term the sort of "golden hour" scenario; you get this window of opportunity to resolve it, and then after that, people tend to lock into positions, and then it becomes difficult.

Is there a model in your view that you feel would more likely be successful than others, if we were to go down this path?

Mr Hamilton: I think if one is looking at the golden hour, one is probably looking at persons appointed internally, who know the scenery. I mean, I am aware of some external firms, and not necessarily lawyers, I think, who will fly you in, as it were, a personnel expert in order to provide you with assistance, and it may start with a duty call, as it were, so that you can get an early steer.

But the police family is an unusual one, and I think that if one were going down this path, one really would benefit by having someone who knows the territory, and that, to my mind, would involve a police officer.

Sir Anthony Burden: I mean, in my experience, internal mediation has its difficulties, because there are obviously suspicions around the motives of individuals concerned. It is the independence, I suppose, that the external brings which may be attractive.

Mr Hamilton: Absolutely right. In a sense, the golden hour perhaps is that the role might be of a facilitator rather than a mediator, if that is not being too subtle.

Sir Anthony Burden: Sure.

Mr Hamilton: I think I alluded earlier to the difficulty that if you have got an in-house coterie, as it were, of mediators, they may come to be seen as aligned with management.

Perhaps, and I say it is only perhaps, the view that might be taken of the individuals is relative to how early they are brought in. I think the later they are brought in, the more there is the risk of their being seen as a tool of management, ultimately.

The other thing that I just sort of pick up from the question as well, one hears "mediator", "ombudsman", "arbitrator" used almost interchangeably. But, of course, the difficulty with an ombudsman, and indeed an arbitrator, is that they will end up delivering a judgment that one party will not be happy with, whereas ideally a mediator will encourage the parties and get them to appoint a resolution where both are happy or relatively happy at least.

Sir Anthony Burden: Yes, thank you. Any recommendation to an organisation such as this, of course, would have to have attached to it a costing.

Mr Hamilton: Yes.

Sir Anthony Burden: Could I ask, in terms of costing out what employment tribunals cost the Metropolitan Police Service, are there true figures available that show costs or legal service costs that could contribute to the debate?

Mr Hamilton: Not entirely, no. I can provide a figure for what it has cost to provide the service this year for the lawyers' costs. We do not this year, but we will from next year, have split the counsel's fees from the general pool, so we will know how much that is. But excluding counsel's fees, internally, it will have cost us in the order of about £500,000, half a million pounds, to service all the employment tribunal work.

Yes, we have had, as you are aware, some very big ones on in the last year, which may inflate the figure, but it is in that sort of ballpark.

Sir Anthony Burden: In that sort of region. Thank you very much indeed.

Sir William Morris: Thank you very much indeed, Sir Anthony.

Mr Hamilton, that concludes the questions from my colleagues and myself, but before you leave us, can I just remind you that I did indicate in my opening statement that you would be offered the opportunity to make a closing comment if you so wished, and if you do, this is your moment.

Mr Hamilton: Well, it is just this: the increasing use of mediation in employment tribunals we see is to be greatly welcomed. We hope it will provide greater opportunities for seeking resolution of disputes; it provides some satisfaction at least to both claimants and the service.

But attached to that is the point that not every claim, in our view, and we acknowledge there can be other views, should be compromised. Because the risk of that is that one demoralises those staff who have wrongly been accused of discriminatory behaviour; and one risks giving the message that those who are doing things properly will not be supported, but mediation has to be the way forward.

Sir William Morris: That brings me to my closing comments. Can I just say that as with all other witnesses, it may be that when we have heard from others, we may wish to hear some more from your good self, in which case we might either ask you to write to us or ask you to come before us again. If we so decide, obviously we will do it in a way which minimises any convenience to you.

For the moment, all that is left for me to say, on behalf of my colleagues and myself, is to thank you and your colleague for the contribution you have made to our Inquiry so far. Thank you.

Mr Hamilton: Thank you.

(Pause)

On this website:

• Evidence: Mr David Hamilton
  Evidence provided by and documents referred to by Mr David Hamilton in his appearance at the Inquiry.
• Transcript: Mr D Hamilton (10 June 2004)
  The full transcript of the second public session with Mr D Hamilton, Director of Legal Services, MPS and Ms Sandra Burrows, held at 2pm on 10 June 2004.