Memorandum from Geoffrey Michael Salvetti
INTRODUCTION
1. I am a Solicitor of the Supreme Court
of Judicature and of the County Court and am a Partner in the
firm of Biscoes King & Franckeiss ("Biscoes"). Biscoes
has six offices in South East Hampshire (Portsmouth/North End;
Gosport; Petersfield; Southsea; Waterlooville and Wickham). We
also conduct six Advice Clinics in various Service Establishments
with the approval of the Commanding Officer's and with original
approval from Higher Command.
2. Historically, two of my former Partners
of Biscoes and I have been very closely linked with RN and RM
holding initially an appointment as Legal Aid Officer RN at HMS
Nelson formerly HMS Victory at Portsmouth for the past 60 years
or more. Although the post has been abolished as a cost saving
measure, nevertheless by invitation of 2SL and Deputy Director
NPFS and RM Welfare Services, a major Advice Clinic continues
at HMS Nelson on two days per week.
3. I have been a founder member and formerly
National Chairman of the Forces Legal Network ("Forces Law")
which network was formed approximately 10 years ago. Forces Law
("FL") is a network of some 20 firms of independent
solicitors throughout the UK (England, Wales, Scotland and Northern
Ireland) and which network specialises in providing help with
military matters for Service Personnel of all ranks throughout
the world. I am also a Member of the Association of Military Court
Advocates (AMCA) and a Member of the Association of Personal Injury
Lawyers (APIL) and also an Accredited Civil and Commercial Mediator
(CEDR).
4. I am the Partner in Charge of the Civil
Litigation Department of Biscoes and which Department comprises
Employment, Personal Injury, Commercial and Private Client Litigation.
I have served in both Regular and Reserve Forces Units during
some 23 years of military service. I served for six years with
the Commando Logistic Regiment RM and subsequently as a Company
Commander with 9 Ordnance Battalion RAOC, the Army's Regular out
of Area Operations Ordnance Battalion.
5. My own specialities comprise Employment
and Personal Injury Claims but in particularly military matters.
I have dealt with a number of claims under the Reserve Forces
Safeguard of Employment Act 1985. At one time, it was acknowledged
that I had dealt with the majority of 1985 Act Reinstatement Proceeding
cases in the UK.
6. I have sat on the General Purposes Committee
of South East Reserve Forces and Cadets Association (SERFCA) since
1985 (21 years) and from time to time have provided Legal Advice
and commentary to SERFCA as well as, at their request, to the
Directorate Reserve Forces and Cadets Association (DRFCA) in relation
to the Reserve Forces Act 1996 and subsequent legislation relating
to alterations to Terms and Conditions of Service for Reserve
Forces Personnel during and after mobilisation. I have also provided
initial advice to DRFCA in relation to the production of JSP 532
and which was the practical guide to Reserve Forces Personnel
in relation to Reinstatement Proceedings.
7. I supervise the running of the six Legal
Advice Clinics conducted by my firm and have any particular problems
relating to Military Employment referred to me. I also receive
referrals from the Law Society (my Governing Body); the Tri-Service
Welfare Authorities; the Royal British Legion; SSAFA; the Tri-Service
Police; the National Association of Citizens Advice Bureaux as
well as from individual Units and Members of the Armed Forces
and also from firms of solicitors both within FL and also those
which are not within FL and from as far away as Northern Ireland.
8. FL has a telephone Referral Service and
matters relating to RN and RM Employment issues as well as RAF
and Army Employment issues are frequently referred to me. The
Referral Service also refer problems to other members of FL depending
upon where the Client would like to receive advice ie near his
home; near his place of duty or elsewhere. In consequence, the
majority of the requests which I receive are likely to be from
the RN but, in fact, I receive many requests for assistance from
the Army, RAF, RM throughout the UK and, indeed, in other parts
of Europe and around the world and including Belize, Brazil, Cyprus,
Greece, Australia, Nepal, Brunei, Canada, Falkland Islands, Iraq,
Afghanistan and anywhere else that the British Serviceman/woman
serves.
9. During 2005 I have dealt with 248 referrals
for advice which did not result in those persons instructing me,
despite the fact that many of them had proper and appropriate
claims and the lack of response was largely because of the problems
of funding. I also saw approximately 180 personnel at two Advice
Clinics with problems which needed to be resolved. This work excludes
attendances on clients by other colleagues within Biscoes at other
Advice Clinics or in the office and also excludes attendances
by other FL colleagues on Service personnel throughout the country.
GRIEVANCES, COMPLAINTS
AND REPRESENTATIONS
10. Over many years, I have become accustomed
to having issues put to me by Service Personnel from all three
Services and from ranks rising from Recruit to 1, 2 and 3 star.
I have given advice within Legal Advice Clinics to Officers of
1 star on several occasions. I do not regard FL or my role as
a solicitor as being one in which I am always intending to take
an adversarial position against the MoD. To the contrary, there
have been many instances when, having heard of problems from a
Serviceman/woman, it has been more appropriate to resolve that
person's issues with the Chain of Command so that the problem
did not escalate any further. I see, therefore, my role, in some
respects, as being able to provide help, advice and guidance and
to solve a problem at the earliest possible stage rather than
to allow the problem to escalate and to result in litigation.
This does not mean, of course, that I would not assist an individual
to resolve their problems by due process if the Chain of Command
failed to deal with matters properly and appropriately.
11. In general terms, the three Services
have tended to deal with their grievance and other service problems
in different ways. It is recognised that there were different
authorities for the resolution of grievances and complaints and
which are now being brought together under one single scheme under
the Armed Forces Bill which is currently being developed.
12. The relevant authorities have been:
RN | Section 130 Naval Discipline Act 1957.
Chapter 42 QRRN
Article 0410 Plago
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RM | Section 180/181 Army Act 1955 AGAI 37, AGAI 67 and AGAI 70
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Army | Section 180/181 Army Act 1955 AGAI 37, AGAI 67 and AGAI 70
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RAF | Section 180/181 Air Force Act 1955 QR(RAF) 1000/1001.
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13. Military problems tend to be referred to me under
one or more of the following problem areas and in respect of which
the Service Personnel had various grievances or complaints:
b. Clinical negligence against either Defence Medical
Services and Staff or Contracted Providers—eg as in Cyprus.
c. Promotion problems and mismanagement of career.
d. Termination of Employment and Return of Service (ROS)
problems.
e. Bullying and mistreatment by Peers or by Superiors.
f. Misconduct—Administrative or Social.
14. In general, there is a very significant lack of knowledge
by most Service personnel in relation to Redress of Complaint,
Representations or the Regulations relating to Social and Administrative
Misconduct. I am aware that personnel, frequently, once in receipt
of documentation such as the AGAI 67 Social/Administrative Conduct
will have no idea to whom to turn. Generally, at lower levels
the Chain of Command is neither interested to support individuals
nor, indeed, at lower levels does anyone appear to have sufficient
or detailed knowledge. I have also discovered from time to time
that, in fact, those that should or ought to be providing help
and support within the Chain of Command are not prepared to do
this either on the basis that it is too much trouble or, alternatively,
that they do not want to become "tainted" with the procedures
which will, inevitably, go higher through the Chain of Command
to 1 star/2 star or above.
EXAMPLE 1
I was asked to lecture to a group of RN Appointers/Drafters
nearly two years ago and of the 15 or more personnel present,
of SNCO and Officers, only six were aware of Redress of Complaint
as a system and only three had ever seen one. Most of the personnel
present had no idea how to deal with them or what to do to assist
anyone. I have found this a common denominator at all levels of
ranks including SNCOs, Warrant Officers and Junior to Middle Ranking
Officers in all three services.
15. There appears to be a general lack of knowledge that
a Redress of Complaint must be submitted within three months of
the grievance arising or it will not be considered. This lack
of knowledge is common at all levels within the Services. There
is also a level of pressure placed on those subject to Administrative
procedures (eg AGAI 67 or AGAI 37) to have significantly short
time frames on replies and representations so that, in consequence,
it is hardly likely that those individuals will be able to make
proper and full Representations and will certainly not have the
opportunity of instructing a specialised Solicitor.
I recognise that there are very few Solicitors or Barristers
within the UK that have specialised knowledge relating to military
employment matters or, indeed, Equal Opportunity investigation
cases and therefore many Service Personnel are put at a significant
disadvantage in seeking legal advice simply because they have
no knowledge as to how to do this. In contrast, the Chain of Command
is advised at various levels by trained Solicitors and Barristers
operating as part of the three legal systems. I find that the
help given by the three services to personnel with difficulties
is, in fact, quite different between the three services.
16. Service personnel are also put at a disadvantage
in many cases because there is no public funding for assisting
with Redress of Complaint or Administrative matters and, in any
event, if Public Funding was available, it is unlikely that it
would be of the level appropriate to a Senior and very specialised
Lawyer providing the advice and assistance that is required. For
example, many Solicitors or Barristers have little or no knowledge
of the military system and have never served within the military
in their lives. There is a need to understand not only the structure
and what actually occurs within the services, but also to understand
and know "the language" and also to understand how the
Service Communities work and live together.
17. Referring Service Personnel to High Street Solicitors
who have no detailed knowledge of the military system is both
unfair on the Serviceman/woman and also will result in them having
to pay charges for work which may not necessarily be appropriate.
There is, of course, also the fact that most Service Personnel
believe that all personnel support is provided for them within
the Services. As a result, many Service Personnel have neither
the understanding that specialist work which is urgent needs to
be paid for properly and, secondly, that specialist Solicitors
are not bankers with access to funding facilities for them. Indeed,
many Junior Personnel have no financial resources at all and do
not have the opportunity of borrowing money to pay for legal advice
in circumstances where they might be disadvantaged where they
failed to respond to the procedures which are being put to them
or, alternatively, failed to lodge a Redress of Complaint in relation
to a wrong which has been done to them.
18. It is evident from various cases that I have been
involved with within the last two years or more that there is
a disregard by some Establishments or Units with regard to the
way in which individuals are processed for discharge when they
are still suffering from medical problems of either a physical
or psychiatric nature and the way in which a complaint might be
made. I believe that the Surgeon General and his staff have published
directives in relation to the fact that individuals who have ongoing
medical problems, howsoever caused at the time of the termination
of their service should appear before a Medical Board for a medical
category to be assessed and, indeed, to enable that individual
to apply for or to receive a Service Disability Pension if appropriate.
In a number of documented instances, this situation has been
circumvented by Units who have chosen to deal with the matter
by way of an Administrative Discharge, thereby preventing the
individual from either having a reduced medical category at the
time of their discharge or, having the opportunity to apply for
a Service Disability Pension. Those persons who are discharged
will, inevitably, not have the knowledge that they have a period
of only three months in which to lodge a Redress of Complaint
and, surprisingly, the Chain of Command within the Unit appears
neither to arrange for those individuals to be advised nor, indeed,
to facilitate their lodging a Redress of Complaint.
This is a matter of concern and shows that an injustice is
taking place in cases which presumably are ongoing.
EXAMPLE 2
In two recent cases which I have dealt with, a young female
rating was raped or indecently assaulted but because she had previously
lodged an application to PVR, she was not referred to a Medical
Board but should have done and nor was she given advice within
the Service.
Another young soldier was allegedly assaulted by his Guard
Commander and had his jaw broken and was also intimidated by other
JNCOs once it was discovered that the soldier was making a formal
complaint against the Guard Commander. That soldier suffered not
only from ongoing medical problems with his broken jaw but suffered
from anxiety, depression and possible PTSD but because he was
frightened of what had happened in the Unit, he returned to his
own home and immediately his father telephoned the Unit. Despite
the ongoing background problems, the Regiment had him charged
with going Absent without Leave and he was sentenced to a period
of detention which was quashed on Summary Appeal. Almost immediately
thereafter, the CO had the soldier discharged Administratively
even though he was suffering from ongoing medical problems. Fortunately,
he was assisted by Mr Justin Hugheston-Roberts, another FL colleague
in relation to the criminal proceedings and was referred to me.
I assisted the soldier in lodging a Redress of Complaint immediately,
having warned the Unit a few days before discharge that they should
not discharge without a Medical Board. The CO decided to ignore
my warning and discharged the soldier Administratively. The Redress
was dealt with at Divisional level and a Medical Board was subsequently
convened and recorded the ongoing medical problems nearly 12 months
later. Again, no legal advice and assistance was proffered to
the individual within the Unit and his Chain of Command failed
to give him any advice and assistance at all. He was, I believe,
considered to be a "nuisance" simply because of the
problems which had occurred even though he had conducted himself
properly as a soldier for several years prior to the assault.
19. It seems to me, therefore, that there is a need for
Assisting Officers to be provided on a mandatory basis within
Units and who have the opportunity and facility to refer individuals
for legal advice and assistance from properly qualified and military
experienced Solicitors. It should be noted, however, that there
is no guarantee that an appointment for a Unit Welfare Officer
or Unit Assisting Officer will result in the appropriate help
and assistance being given.
EXAMPLE 3
I would refer the Committee to a case in which I was involved
over several years in which an experienced and highly thought
of Corporal was bullied by a WO1 (RSM) at every opportunity including
on parade and even when the Corporal was Guard Commander in the
Guardroom and when the WO1 threw the contents of the Guardroom
book case at him in front of the Guard. This situation resulted
in the Corporal sustaining a nervous breakdown. Within his own
Unit, no help was provided to him because, as it happened, the
WO1 was the Unit's Equal Opportunities Officer! Only when the
Corporal was transferred to the Royal Hospital at Haslar in Gosport,
the Services sole remaining military hospital, did the staff there
try and assist by helping the Corporal to lodge a Redress of Complaint.
In fact, the CO dismissed the first and the second Redress of
Complaint and only later once I was instructed to assist with
the third Redress, did the matter get above the CO level and be
dealt with at Brigade/Divisional level when matters started to
resolve.
20. EXAMPLE 4
A Sergeant in the Royal Signals who, again, had outstanding
CR's for several years but who, when shortly after a stomach operation
attended a Mess function, was struck and kicked by his WO1 (RSM)
in the WO's and Sergeants Mess at a function. When the Sergeant
attempted to lodge a Redress of Complaint, it was dismissed by
his CO and subsequent efforts at raising the matter were deemed
to be "out of time" because no-one wanted to upset the
RSM and the CO. The Sergeant was also given "advice"
by his Adjutant that he should withdraw the Redress because it
could cause problems for him. This is not the sort of independent
and proper advice that should be given but, nevertheless, is indicative
of the problems which are experienced.
21. EXAMPLE 5
An experienced Commissioned Naval Nurse was indecently assaulted
publicly in a Combined Ranks Mess abroad. The lady was considerably
distressed but received mixed advice and the Disciplinary Proceedings
against the Petty Officer who assaulted her in public were badly
handled resulting in criminal proceedings at Courts Martial being
dismissed with very scathing comments by the Judge Advocate, who
also expressed concern about the lack of help given to the Naval
Nurse. No help was given to her to lodge a Redress of Complaint
and even when this was prepared, with my help, the Redress was
dismissed at first instance with a lack of interest and a lack
of support for her from Higher Authority. Again, no Assisting
Officer was provided for her in the first instance and she was
put to the considerable trouble and difficulty of finding a Solicitor
who had military knowledge and who could advise and help.
22. A number of individuals may have Legal Expenses Insurance
with their buildings or contents policies for their home or kit
insurance etc. In some instances, this is useful insofar as legal
costs can be settled under the policies but the Insurance Companies,
themselves, resist Service Employment matters being dealt with
under the policies particularly because they do not have any detailed
knowledge of Service Employment procedures and nor do their Solicitors
on their Panels. However, many Insurance Companies, even if they
accept the risk, will not allow specialist Solicitors with military
experience and knowledge of military procedures to deal with the
matters and they simply refer these cases to their own Employment
Solicitors on their own Insurance Company Panels. This means,
therefore, that there is a considerable disadvantage to the individuals
concerned, not only in relation to any delays in a solicitor picking
up the case, but also because most civilian Solicitors have no
knowledge or understanding of Service Employment or Service issues.
THE FUTURE?
23. In line with the provisions of the Human Rights Act
1998 and the European Convention on Human Rights and to mirror
various applications of Employment Law in relation to civilians
(which is not appropriate to members of the Armed Forces) an individual
should be entitled to a fair and public hearing within a reasonable
period of time (Article 6 Right to a fair trial) and which would
apply to Redress and Grievance cases concerning civil rights and
obligations, particularly with regard to Employment Rights. There
should be rights to respect for private and family life (Article
8) and Prohibition of Discrimination (Article 14).
Accordingly, an individual should have the opportunity of
being given equal assistance in the same way as the Chain of Command
has access to legal advice and having access to independent Lawyers
who can provide an objective view in relation to the matters about
which they complain. Similarly, there should be an Assisting Officer
who should remain unbiased and should provide objective help,
support and guidance both to the individual who is aggrieved or
has a complaint made against him/her as well as giving guidance
on military issues affecting the individual to the Lawyer consulted
by the Serviceman/woman.
24. There should be a simple and straightforward system
to progress a grievance and it should not be one which takes "points"
to cause the Redress to start all over again or which procrastinates
and delays or tries to cancel the Redress because of a technical
point.
EXAMPLE 6
I have acted for a Flight Lieutenant in the RAuxAF who was
undertaking security and intelligence duties after mobilisation.
In relation to problems which subsequently occurred, he lodged
a Redress of Complaint but his Regular Superiors failed to progress
the complaint initially and then sent it back to him asking him
to re-draw it because it was not in the form that the RAF suggested
should be used, even though the points of complaint were clearly
set out and the Redress which he sought was clearly set out.
Subsequently, following some firm argument, the form of Redress
was, in fact, accepted but it is evident that, nearly 18 months
on, the first Redress has still not been resolved and a second
Redress had to be lodged with the threat that of a third Redress
to try and progress matters! These delays are unacceptable.
25. The MoD provides a DCI in relation to Personal Injury
Claims which sets out references for Service Personnel to contact
the Royal British Legion in relation to Personal Injury Claims
or Betesh Fox and Co in relation to claims not against the MoD.
In the past, the MoD has chosen not to refer to FL on the basis
that MoD did not want to be referring a particular firm or organisation
against others or in preference to others. As the MoD already
referred to RBL which has some five or six firms of Solicitors
who act for them and indeed one or more of their nominated firms
also refer cases to FL, it would be appropriate for FL to be an
organisation to which cases could be referred, particularly in
relation to Employment, Crime and PI. As the MoD endorses Betesh
Fox and Co under their PI scheme, it would seem appropriate for
FL's specialisation to be made known on a DCI and MoD website.
It should be noted that Betesh Fox have contacted me for advice
and we receive referrals from RBL, SSAFA and from the three Services
direct, as well as the Welfare Services.
26. The Legal Advice Clinics which have been operated
by various firms of Solicitors within FL over many years, have
a great deal of value because they provide independent legal advice
and assistance for personnel of all ranks and regardless of the
type of problem. FL has the facilities to provide comprehensive
Legal Advice and Assistance by way of cross-referral through the
various parts of FL and in some cases, it is possible by FL's
solicitors speaking with the Chain of Command at Unit level, to
resolve problems locally.
EXAMPLE 7
For example, I alerted the Adjutant of 47th Regiment Royal
Artillery at Thorney Island to problems relating to bullying and
in respect of a soldier who was about to go AWOL for the second
or third time. By tackling the bullying problem immediately before
the soldier went AWOL, the soldier was able to continue to serve
and the bullying problem was stamped out at a much lower level
and without publicity and without a court case brought on behalf
of the soldier concerned. Legal Advice Clinics and the access
to independent specialist Lawyers must be part of the process
to ensure that all members of the Armed Forces have equal access
to justice.
27. Members of Reserve Forces, generally, have no knowledge
of the complaint system and very little knowledge of the way in
which Regulations affect them, other than in their Reserve Forces
work. I have seen situations where members of Reserve Forces have
been bullied by their Regular counterparts and have also seen
situations where Reserve Forces personnel have been disadvantaged
because they did not know how to respond to matters which were
continuing within their Unit and Higher formation. Again, as no
knowledgeable Assisting Officer was appointed by the Regular CO
and 2IC, the individual concerned was disadvantaged and took no
action at all until after the three month limitation period had
expired and when, in fact, he might well have resolved matters
properly by lodging a properly constructed Redress of Complaint
within the three month period had he known what he could do.
28. The way in which many Units fail to ensure that their
personnel are aware of the complaints system is totally contrary
to the way in which civilian Employers are required to ensure
that Terms and Conditions of Employment, including the Grievance
and Complaints System are made known to their Employees at the
very outset of their Employment, together with alterations which
may occur at a later stage.
29. Whilst it might be argued that the various complaints
and grievance procedures are in documentation to which an individual
has access, it is unlikely that people know where to look and
nor, indeed, whether they would be permitted to have access. On
a number of occasions, I have referred individuals to their Orderly
Room, Admin Office, UPO or MACCO only for them to be told later
by the Chief Clerk or Chief Writer to go away and without any
information or assistance being given to them. The issue of dissemination
of information is one that needs to be looked at and particularly
where there are fundamental rights as to Terms and Conditions
of Employment, Terms and Conditions of Discharge and Early PVR
as well as complaints and grievances which should be very visible
and notified to all personnel.
30. A constant complaint that I receive on a weekly basis
and probably on most days from various individuals in all three
services is the fact that they do not know what their Terms and
Conditions of Service are and, indeed, how to complain. Many are
frightened about complaining because of the fact that the "Chain
of Command" at the lowest levels will often prevent the complaints
going any higher to avoid punishment or warnings on themselves.
On occasions, there is a complete disinterest by lower and middle
management to resolving complaints although I have to say that
at higher levels and at the highest levels that I have spoken
to (1, 2 and 3 stars) there is great concern that complaints should
be dealt with properly and adequately.
Unfortunately, as I have discovered by talking to Senior
Officers there are considerable problems which are not sorted
out quickly and early enough and, in any event, the Services are
very poor at "saying sorry". As a result grievances
tend to "fester on" and particularly in cases of bullying,
there is a considerable anxiety at higher levels of Units that
details of bullying are not disclosed to the higher Chain of Command
outside of the Units. In addition, there are a number of military
personnel in lower and middle management who feel that complaints
and grievances are either indicative of "whinging" or,
alternatively, the persons making the complaints are "troublemakers".
There is, therefore, no active desire to progress matters and
at some levels, there is a very firm view that complaints should
not be allowed to progress because they will upset the status
quo.
31. In relation to time limits, the exercise of discretion
to allow a claim or complaint to proceed beyond three months should
be exercised more frequently because of the lack of information
and lack of support to personnel. Similarly, a rapid progression
of the casework for Redress of Complaint should be undertaken
but balanced by the fact that individuals should have a reasonable
time to obtain independent legal advice, particularly bearing
in mind that the numbers of skilled specialist Lawyers available
on a national basis are very few. The three Services are, in general,
unable to provide Lawyers to assist personnel in respect of Redress
of Complaint or Misconduct proceedings because of the potential
conflict of interest which occurs, as the Legal Services for all
three Services advise the Chain of Command in its role as "Employer".
Therefore, it would be appropriate for a longer period of time
to be afforded to an individual to answer to Administrative Conduct
allegations and formulate a proper reply and also to respond in
relation to matters relating to Redress of Complaint. In relation
to Administrative Misconduct cases, there appears to be a different
practical application of the core values and standards within
the three Services. In my experience, matters which would be wholly
unacceptable in the Army, might be ignored or treated more leniently
in the RN. Matters relating to misconduct of individuals either
of a social or a military nature must be approached with equity
and fairness and in accordance with the principles of natural
justice.
February 2006
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