perpetrator; questions of mitigation including expressions of regret or apologies; and the ability to ensure proper work practices in future. Although disciplinary policies will take such matters into account in various ways, such as by defining certain conduct to be minor, serious or gross misconduct or providing for a range of sanctions, the language and structure of the Ministerial Code do not reflect that ability to consider all relevant matters in deciding how to deal with conduct which falls within the description in paragraph 1.2.
57. The Prime Minister has indicated that for the purpose of this investigation, and any decision he may take, he is content to adopt the approach to bullying explained by the High Court in the FDA Case.
58. Accordingly, in obtaining evidence in this investigation and identifying potentially relevant material for the purpose of the Prime Minister's ultimate decision, I have focused my attention on the matters identified in the FDA Case, which include the following:
- (1) The facts and context of the conduct of the DPM.
- (2) The nature and (if relevant) seriousness of the conduct, including whether it was offensive, intimidating, malicious or insulting, or was experienced as such, or was an abuse or misuse of power in ways that undermine, humiliate, denigrate or injure the recipient.
- (3) The reasons, understanding and intentions of the DPM.
- (4) If relevant, questions of mitigation including expressions of regret or apologies.
- (5) The ability to ensure proper work practices in future.
59. The first three such aspects have been my primary focus. I have also addressed the latter two in case they should be regarded as relevant by the Prime Minister.
60. While recognising that neither of the reports referred to here formed part of the analysis set out in the FDA Case, I have also found useful, for the purpose of making findings of fact, the distinction set out in the 2018 report of Dame Sue Owen DCB, "Review of Arrangements for Tackling Bullying, Harassment and Misconduct in the Civil Service", between 'abusive' behaviours, i.e. ones that are intended and specifically targeted, and 'abrasive' behaviours, i.e. personal styles, which feel like bullying (or other misconduct) to the individual, but are not intended to be so and where the perpetrator
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