Matthew Bolt: http://www.5pumpcourt.com/barristers/mastthewbolt
Service in HM Forces is unlike any other employment. There is no contract of employment and significant restrictions are placed on the freedoms enjoyed in civilian life. All service personnel are subject to a disciplinary system designed to maintain the efficiency of the service. The Army’s discipline system consists of ‘criminal law’ under the Armed Forces Act 2006 (Summary Dealing and the Court Martial) and ‘employment law’ under AGAI67. Its application is far wider than civilian employment law; a minor breach of contract in civilian life e.g. failing to turn up to work will amount to a criminal matter, and infidelity outside of work will amount to an employment matter for service personnel. This article deals with AGAI67. The Royal Navy and the Royal Air Force have similar systems for administrative action.
What is AGAI67?
Army General Administrative Instruction 67 sets out the Army’s employment law, its scope, purpose and procedure. Depending on the severity of the alleged breach service personnel may be subject to either Major or Minor Administrative Action. Minor Administrative Action.
Minor Administrative Action is used to deal with minor failures to meet the stated standards of behaviour or performance, such as poor turnout, bad soldiering, performing duties below the expected standard, or an absence of up to 48 hours.
Major Administrative Action is used to deal with more serious failures up to and including conviction for criminal offences in the civilian courts.
What is the purpose of Administrative Action?
The purpose of Administrative Action is to sustain and uphold the values and standards of the British Armyand involves the imposition of sanctions which are intended principally to be corrective and restorative rather than punitive. Sanctions are designed to restore operational effectiveness and safeguard it in the future.
What sanctions may be applied?
Sanctions for Minor Administrative Action include:
1. Report Back/Muster Parades
2. Extra Tasks or Duties
3. Extra Work
4. Informal Interview
5. Formal Interview
6. Returned to Unit. (Only used in a Joint unit)
Sanctions for Major Administrative Action include:
1. Censure (No Discipline Entry)
2. Any of the other sanctions available under Minor Administrative Action
3. Censure (Discipline Entry)
4. Reduction in Rank (NCOs and WOs) or Forfeiture of Seniority (Officers)
5. Removal from Appointment by the Army Board
6. Termination of Service (Dismissal, Retirement or Resignation)
What triggers Administrative Action?
When the chain of command is considering administrative action they will apply The Service Test and ask: “Have the actions or behaviour of an individual adversely impacted or are they likely to impact on the efficiency or operational effectiveness of the Service?”
If the answer is “yes” then the Service Test is breached, and Administrative Action may be commenced.
The question is answered, on the balance of probabilities, the same standard of proof used in the civilian Employment Tribunal. The decision maker must decide if it is more likely than not that the Service Test is breached.
A civilian conviction will always breach the Service Test.
I am facing Minor Administrative Action, what will happen?
When a suspected minor failing is identified Administrative Action is initiated by the Deciding Officer who investigates the alleged failing and applies the Service Test. If the Service Test is breached an appropriate sanction will be selected and you will be informed verbally of the decision. The decision is reviewed and if you believe the finding is unfair or you should not receive the sanction you will have the opportunity to appear before the Reviewing Officer and say why you believe the finding or sanction should not be approved. If the sanction is approved or amended, you will then receive the sanction under the supervision of an officer or NCO.
I am facing Major Administrative Action, what will happen?
When a suspected major failing is identified an Originating Officer will make an initial assessment and conduct an initial interview with you before deciding if there are sufficient grounds to investigate. If there are sufficient grounds to investigate then the Originating Officer will investigate. A copy of the report should be disclosed to you before a further interview at which the Originating Officer will receive your representation. The report will then be sent to The Deciding Officer.
The Deciding Officer will interview you and decide on the balance of probabilities:
1) If the alleged misconduct occurred; and
2) If the Service Test is breached.
The Originating Officer and the Deciding Officer do not have to follow strict rules of evidence in the way the Court Martial or the civilian courts do.
If the Service Test is founded to be breached, then you will be awarded a sanction and if necessary, you will be directed to undertake remedial training.
Can I have legal representation?
Minor Administrative Action: You are not permitted to have legal representation.
Major Administrative Action: You are not permitted legal representation during your initial interview. Representation at the final interview is at the discretion of the Deciding Officer. When deciding whether or not to permit legal representation, the Deciding Officer should consider the seriousness of the allegations and their potential impact on you. The Deciding Officer will not make the decision without seeking legal advice from the Army Legal Service. Generally legal representation will be allowed in cases involving significant factual disputes and where the likely sanction will result in termination of service.
However, in all cases you can instruct a lawyer at your own expense to draft your representations.
Will there be an Oral Hearing, like Summary Dealing?
It is unusual for an Oral Hearing to be deemed necessary, in almost all instances the Deciding Officer will simply interview you and read any written representations. However, where there is substantial conflict in the evidence or points of law an Oral Hearing will likely be deemed necessary.
There is no prescribed procedure for an Oral Hearing, procedure will be decided by the individual Deciding Officer. The Deciding Officer will be advised by a legal officer and can receive oral and written evidence. The Deciding Officer must then decide facts on the balance of probabilities, based on the evidence before them.
The Deciding Officer will then apply the facts to the Service Test and decide if it has been breached. If the Service Test has been breached, then the Deciding Officer will impose a sanction.
Can I appeal?
There is no automatic right of appeal in cases of Major Administrative Action. A Higher Authority may decide on their own to review any case or sanction. You may also request a review. Your request must be in writing. You may instruct a lawyer to help you draft the request and set out the errors you believe were made. The Reviewing Officer must adopt the role of the Deciding Officer and will afford you a fresh interview. You may request legal representation at the interview.
A sanction will only be upheld if the Reviewing Officer is satisfied that:
1) That there was an expeditious, through and fair investigation;
2) That based on the evidence, the Service Test was breached; and
3) That based on the evidence the sanction was reasonable and proportionate.
This is a fresh assessment of the case and the facts. If the Reviewing Officer concludes the investigation was not fair they may order a new investigation.
If you are not happy with the way you are treated following a review you may file a Service Complaint or in exceptional cases apply for judicial review by the High Court. A judicial review must be applied for as soon as possible and in any case within three months.
I’ve received the Originating Officer’s Report – What are the first 3 things I should do?
1) Check the Report. The Originating Officer must disclose to you:
Flag A – The Main Report (aka The Annex C)
Flag B – A record of your initial interview
Flag C – A copy of the witness statements and other evidential documents
Flag D – Guidance on the financial and career implications of sanctions
Flag E – Your conduct sheets
Flag F – A copy of your representations to the Originating Officer
Flag G – AFB 130 (Only if discharge is recommended)
Flag H – Written record of authorisation from Higher Authority if required
2) Check the recommended sanction and the financial and career implications. The recommended sanction may affect your financial security and your family. Before responding you need to assess the full impact of the recommended sanction.
3) Draft your representation in response or request time to instruct a lawyer to advise you and draft your representation for you.
If you are facing Major Administrative Action you are entitled to consult a lawyer at your own expense and your Chain of Command should grant you time to obtain legal advice. You can instruct a direct access barrister (http://www.5pumpcourt.com/direct-public-access-barristers) who can assist you in preparing your representations to the Deciding Officer and if necessary represent you at an Oral Hearing.