People may act out of character in times of trouble or distress. There may have been upsetting or distressing circumstances leading up to someone contacting us or making a complaint to our office. We do not view behaviour as unacceptable simply because someone is assertive or determined. In fact, persistence can often be a valuable asset when pursuing a complaint. However, we do consider actions that result in unreasonable demands on our office or unreasonable behaviour towards ESC staff to be unacceptable. It is these actions that we aim to manage under this policy.

The following circumstances may be regarded as illustrative of unacceptable or unreasonable conduct by someone contacting us. This list is not exhaustive or conclusive.

We have developed internal guidance that helps our staff manage unacceptable behaviour. This ensures a consistent approach and provides methods for appropriately managing those behaving unreasonably.

A key aim of the guidance is to ensure that individuals are promptly warned if their behaviour is becoming unacceptable and informed of the consequences if it continues. Warnings will be given in a measured manner to help de-escalate the situation and restore constructive communication. Our goal is to continuing engaging with the person without needing to apply the unacceptable behaviour policy. 

The threat or use of physical violence, verbal abuse, in writing, in person or by telephone or harassment towards ESC staff is likely to result in a termination of all direct contact with the individual. We may report incidents to the police. This will always be the case if physical violence is used or threatened.

ESC staff will end telephone calls if they consider the caller aggressive, abusive or offensive. ESC staff have the right to make this decision, to tell the caller that their behaviour is unacceptable and end the call if the behaviour persists.

We will not respond to correspondence (in any format) that contains statements that are abusive to staff or contains allegations that lack substantive evidence. Where we can, we will return the correspondence. We will explain why and say that we consider the language used to be offensive, unnecessary and unhelpful and ask the sender to stop using such language. We will state that we will not respond to their correspondence if the action or behaviour continues.

In extreme situations, we will tell the person in writing that their name is on a ‘no personal contact’ list. This means that we will limit contact with them to through a third party.

We have to take action when unreasonable behaviour impairs the functioning of our office. We aim to do this in a way that allows a complaint or concern to progress through our processes.

We will try to ensure that any action we take is the minimum required to solve the problem, taking into account relevant personal circumstances including the seriousness of the issue and the needs of the individual.

Actions we may take:

Where someone repeatedly phones, visits the office, raises repeated issues or sends large numbers of documents where their relevance isn’t clear we may decide to:

• Limit contact to telephone calls at set times on set days
• Restrict contact to a nominated member of ESC staff who will deal with future calls or correspondence
• See the person by appointment only
• Restrict contact from the individual to writing only
• Return any documents or, in extreme cases, advise that further irrelevant documents will be destroyed
• File, but not respond to, further correspondence
• Take any other action that we consider appropriate

Where we consider continued correspondence on a wide range of issues to be excessive, we may tell the person that only a certain number of issues will be considered in a given period and ask them to limit or focus their requests accordingly.

In exceptional cases, we reserve the right to refuse to consider a complaint or future complaints from an individual. We will take into account the impact on the individual and also whether there would be a broader public interest in considering the complaint further.

We will normally tell the person what action we are taking and why.

Any member of ESC staff who directly experiences aggressive or abusive behaviour has the authority to deal immediately with that behaviour in a manner they consider appropriate to the situation and in line with this Policy.

With the exception of such immediate decisions taken at the time of an incident, decisions to restrict contact with the ESC are only taken after careful consideration of the situation by a member of the Senior Management Team (SMT). Wherever possible, we will give people the opportunity to change their behaviour or action before a decision is taken.

When an ESC employee makes an immediate decision in response to offensive, aggressive or abusive behaviour, the person is advised at the time of the incident. When a decision has been made by senior management, we will give the reasons in writing (this can be supplemented if written communication is not the most appropriate form for the individual) as to why a decision has been made to restrict future contact, the restricted contact arrangements and, if relevant, the length of time that these restrictions will be in place. This ensures that the individual has a record of the decision.

Overall responsibility for policy implementation, monitoring and review lies with ESC. Everyone covered by the scope of the policy is obliged to adhere to, and facilitate implementation of the policy. Appropriate action will be taken to inform all new and existing employees and others covered by the scope of the existence of the policy and their role in adhering to it. The policy will be reviewed at such times as legislation or a change to the ESC policy position requires it. The policy will be made available to the general public.

It is important that a decision can be reconsidered. The individual can appeal a decision to restrict contact. If they do this, we will only consider arguments that relate to the restriction and not to either the complaint made to us or to our decision to close a complaint.

An appeal could include, for example, someone saying that:

• their actions were wrongly identified as unacceptable;
• the restrictions were disproportionate;
• or that they will adversely impact on the individual because of personal circumstances.

The Commissioner, who was not involved in the original decision, will consider the appeal. They have discretion to change or cancel the restriction based on the evidence available to them. We will advise the person in writing or in another, appropriate format - explaining whether the restricted contact arrangements will continue or if a new approach has been agreed.

There is no further route of appeal in cases in which the Commissioner has invoked the policy and once the Commissioner has made a final decision.

We will review the restriction periodically or on further request after a period of time has passed. Each case is different. We will explain in the letter or email setting out the restriction what review process will be in place for that restriction and in what circumstances they could request this be reconsidered.

If someone alleges misconduct by the Commissioner or their staff, they may file a complaint with the Scottish Public Services Ombudsman (SPSO) (see the Complaints Handling Procedure). We will inform individuals of their right (if appropriate) to make such a complaint.