Ever wondered what happens when a report of unsatisfactory conduct is made against a UN staff member? Who reviews the report and decides whether there will be an investigation? If there is an investigation, what happens next?
This article provides an overview of the processes in the UN Secretariat for addressing reports of unsatisfactory conduct by UN staff members. The relevant policies we draw on include ST/AI/2017/1 (Unsatisfactory conduct, investigations and the disciplinary process) and ST/SGB/2019/8 (Addressing discrimination, harassment, including sexual harassment, and abuse of authority).
What is “unsatisfactory conduct” vs. “misconduct”?
The UN Staff Regulations and Rules tell us that, when a staff member fails to comply with their obligations under the Charter, the Staff Regulations and Rules, or other administrative issuances, or if they fail to observe the standards of conduct expected of an international civil servant, it may amount to “misconduct” and lead to a disciplinary process.
But what will tip conduct over from being “unsatisfactory conduct” to “misconduct”? In short, the distinction is not clearly defined and it may be a fine line in some cases. Section 3 of ST/AI/2017/1 tells us that it has to do with the gravity, or seriousness, of the conduct in question. It may depend on factors such as whether the breach was minor or technical or substantive and deliberate, whether it caused harm to others or the organization, or whether it was a lapse in a core organizational value, such as integrity.
However, there are some categories of misconduct set out in the UN policies. Section 3.5 of ST/AI/2017/1 provides examples of misconduct including: acts like fraud or misrepresentation, discrimination, harassment, including sexual harassment, abuse of authority and retaliation; misuse of UN property; misuse of office; sexual exploitation and abuse (SEA); other acts that would discredit the organization; or assisting in the commission of misconduct.
What happens when the organization receives a report of unsatisfactory conduct?
Staff members are obliged to report breaches of the UN’s regulations and rules. Staff can report unsatisfactory conduct to the Office of Internal Oversight Services (OIOS) or the “Responsible Official” of their entity – this is usually the Head of Mission or Department – with a copy to OIOS. Conduct and Discipline Focal Points are appointed in each department/office/mission and can assist staff.
A person targeted by “prohibited conduct” (discrimination, harassment, sexual harassment, and abuse of authority) may choose to first raise the matter with the staff member, their own supervisor, or senior officials. They may also attempt to resolve the matter informally, including with the assistance of the United Nations Ombudsman and Mediation Service (UNOMS). They may always make a formal report.
When a report of unsatisfactory conduct is received, OIOS will initially review the report and decide whether to investigate the matter itself, or to refer the matter to the Responsible Official for review and a decision on whether an investigation is warranted. If OIOS opens an investigation, the Responsible Official is not involved.
In deciding whether to open an investigation, OIOS or the Responsible Official, as appropriate, may consider whether the behavior in question could amount to misconduct, whether the report was made in good faith and was sufficiently detailed, and whether informal resolution might be more appropriate. Where a decision is taken not to investigate, the Responsible Official may still choose to take “managerial action”, such as giving a caution, warning or advisory communication to the staff member, requiring them to undergo training or referring them to the staff counselor. They can also issue a reprimand once the staff member has been provided an opportunity to comment on the facts and circumstances concerning their conduct.
After receiving a report of alleged prohibited conduct, Responsible Officials can take various measures to prevent similar conduct or retaliation against the targeted individual while the report is under review. For example, they might change reporting lines, physically separate the individuals, or institute flexible working arrangements.
Investigation process
If a decision is taken to open an investigation, either OIOS, another investigating entity such as a Special Investigation Unit in a mission, or a fact-finding panel appointed by the Responsible Official conducts the investigation. They collect information and may interview witnesses. Staff members who have been identified as a subject of an investigation are permitted certain rights during this process, including to provide their version of events and to be given a record of their interview with investigators.
If the investigation finds that the facts indicate the staff member may have engaged in unsatisfactory conduct, an investigation report is produced and the matter is referred to the Office of Human Resources (OHR) in the Department of Management Strategy, Policy and Compliance (DMSPC).
During an investigation of possible prohibited conduct, a Responsible Official is expected to monitor the situation between the targeted individual and the staff member, as well as the overall work unit, so that there is a harmonious work environment and no unsatisfactory conduct occurs, e.g. retaliation.
Disciplinary process
When an investigation report is received by OHR, the Assistant Secretary-General for Human Resources (ASG/OHR) decides whether to initiate a disciplinary process. The ASG/OHR considers, amongst other things, whether the evidence collected by the investigators indicates that the conduct occurred and whether it would amount to misconduct. Case files are often voluminous and can contain hundreds of documents, as well as recordings of interviews that must all be carefully considered by legal officers within OHR, who provide assistance and advice to the ASG/OHR.
If the ASG/OHR decides to initiate a disciplinary process, allegations of misconduct are drafted and sent to the staff member describing what it is alleged they did and the evidence in support. They are also provided with the investigation report and supporting documentation. Staff members can contact the Office of Staff Legal Assistance (OSLA) or private counsel (at their own expense) to represent them. They generally have 30 days to provide any comments and supporting documents (extensions of time may be requested).
Once a staff member’s comments are received, they are considered together with the entire file. This can take some time as often the dossier, consisting of the investigation file and the staff member’s comments and documents, can be extensive. Based on a recommendation of the ASG/OHR, the Under-Secretary-General for Management Strategy, Policy and Compliance (USG/DMSPC) decides whether the facts as alleged are proven, whether there was misconduct, and whether the staff member should receive a disciplinary measure.
Disciplinary measures are limited to the measures set out in Staff Rule 10.2(a), ranging from a written censure to dismissal. The staff member is informed of the outcome of an investigation or a disciplinary process, if conducted. Individuals who have been affected by prohibited conduct will also be informed of the outcome.
Disciplinary measures are recorded on a staff member’s official status file and electronic personnel records. In addition, the names of staff members who have been separated for sexual harassment or SEA are recorded in an electronic, centralised database (Clear Check), which is used by the organization and other UN system entities to prevent their recruitment again.
Every year, an anonymized record of the disciplinary measures imposed on staff members is made available in the Compendium of disciplinary measures, which can be found online in the Resources section of the UN HR Portal.
What if a staff member disagrees with a decision in a disciplinary case?
If a staff member disagrees with a decision to impose a disciplinary measure on them, they can challenge it at the United Nations Dispute Tribunal (UNDT), which is the UN’s employment law tribunal. Unlike other administrative decisions, disciplinary decisions do not require a staff member to first make a request for management evaluation, but an appeal must be filed within 90 days. Staff members can seek legal assistance from OSLA or private counsel (at their own expense).
In addition, in cases of reports of prohibited conduct, if the person affected by the alleged conduct believes that the procedure followed was improper, they may contest the matter before the UNDT.
This summarizes the process of how the organization handles reports of unsatisfactory conduct. More detailed information can be found in the relevant policies and in the introduction to the Compendium of disciplinary measures. If staff are in any doubt about whether conduct is contrary to the organization’s rules and regulations, they can check with their Human Resources office, their Conduct and Discipline Focal Point, the UN Ethics Office, or UNOMS, and/or seek assistance from a senior colleague. The Compendium will also provide information on conduct that has been the subject of disciplinary measures in the past.