7.1.1 Before line managers take action to resolve a misconduct complaint they need to consider whether an allegation is of minor or is serious / gross misconduct. Minor misconduct is defined in section 6.
Serious or Gross misconduct is any action or behaviour of a Home Office staff member or contractor which, if substantiated, could require formal management action such as written warnings, dismissal or other penalty. All line managers who consider that complaints about the staff or contractors may or does meet the criteria for serious misconduct must refer the case to the Central Point of Receipt if they receive them directly from the complainant.
7.1.2 Serious / gross misconduct complaints are based on allegations that fall into one of the following categories and should be recorded as such on CMS:
Criminal Assault
Criminal Sexual Assault
Criminal Theft
Criminal Fraud or Corruption
Racism or other discrimination. (NB: This category should be used to record all allegations of discrimination related to “protected characteristics” as defined in the Equality Act 2010.)
Unfair treatment (e.g. harassment)
Other Unprofessional Conduct (including any behaviour likely to bring the Home Office into disrepute; or which casts doubt on a person’s honesty, integrity or suitability to work for the Home Office.)
7.1.3. All serious / gross misconduct complaints received about, UK Visas & Immigration, Immigration Enforcement Border Force staff or contractors must be referred to the Central Point of Receipt who will liaise with the Central Referral team (CRT). If appropriate the CRT will allocate the complaint to PSU or Corporate Security Criminal & Financial Investigations (CSCFI). The Command and Control Unit (CCU) or the National Operations Command and Control (NOCC) for Border Force may also refer matters arising from serious incidents to PSU.
7.1.4 Once CRT has established which team will investigate the complaint, this will be fed back to the CPR. The accepting team will update CMS to reflect they are taking the
investigation forward. On conclusion of the investigation the accepting team will close the entry on CMS. The PSU will add a copy of the complainants’ reply letter to the CMS entry, on closure of PSU cases.
7.1.5 If the complaint is referred back, but the allegations are serious, the line manager or Decision Manager (if not the same) should follow the guidance in the ‘Discipline: How to’ guidance on formal investigations.
7.1.6 They should however follow the requirements of this section of the complaints management guidance for communicating with the complainant and for keeping Responder Hubs informed (7.7, 7.10, 7.11.1 and 7.11.2.).
7.1.7 When a reply letter is sent to the complainant by the line manager or DM, informing them the complainant of the outcome of their complaint, the line manager or DM should ensure that the process for review of the complaint by a Responder Hub is clearly written. Ensure that the email address for complaints is provided to the customer so they can request a review within 1 month from the date of the substantive reply to their complaint. 7.1.8 Where the PSU conducts the investigation, they will provide details for who the complainant should contact in order to submit an appeal. The appeal avenue will differ by case and in each case the complainant will be informed, in their reply letter, of their avenue of appeal, regardless of the outcome of the complaint:
Detention complaints – Prison and Probation Ombudsman (PPO)
Short Term Facility complaints – Prison and Probation Ombudsman (PPO)
Escorting complaints – Prison and Probation Ombudsman (PPO)
Non-detention complaints – Head of Unit (HOU) Review then Parliamentary and Health Services Ombudsman (PHSO)
Complaints re incidents in Scotland involving the Police or Home Office staff – Police Investigation Review Commission (PIRC) (HOW Review must be conducted first).
Complaints involving the use of police like powers – Independent Police Complaints Commission (IPCC)
7.1.9 Please see section 10.5 of this guidance for instructions on allegations of misconduct which include children.
7.2
Allegations of discrimination
7.2.1 Not every complaint that alleges discrimination or racism will be for PSU to investigate. Of complaints alleging discrimination, racism is by far the most frequent type of discrimination
referred to. CRT and PSU use the ‘D x 3 + E’ formula, recommended by the Independent Police Complaints Commission (IPCC), for considering whether complaints show possible
discrimination. The formula stands for:
Has there been a Difference in treatment? i.e. was a customer subjected to different treatment than another customer in the same circumstances
Is there a Difference in race? i.e. between the customer and subject(s) of the complaint
Has the difference in treatment been to the Detriment of the customer? i.e. if the customer was treated differently was that a worse service or poorer treatment than others received
Has there been an Explanation for these differences available from any source? i.e. would race appear to be the sole or major factor, or was there something about their
circumstances that would account for them being treated differently
7.2.2 If there is strong initial evidence available that the customer’s treatment can be explained by factors other than race then the CRT may choose to refer the complaint for local action rather than referring it to PSU. This type of case would likely include complaints where no specific racist behaviour is referred to but the complainant states, for example, an immigration decision against them such as refusal of Leave to Enter at a Primary Check Point, or a provision of service in itself, indicates implicitly a racist attitude; correct application of the formula test is important.
7.2.3 If there is any doubt whether an allegation is about discrimination the line manager must refer the matter to CPR for referral; to CRT and possible allocation to PSU. CRT will then make the determination as to whether it requires formal PSU-led investigation. Where an allegation specifically states that an explicitly racist statement was made, CPR will always send this to CRT to arrange a formal PSU-led investigation. In cases of implicit racism, if in doubt, CRT must be contacted.