Don't Go It Alone (- two or more councillors essential) and Employee Heat of the Moment Resignations

1.    Don’t go it Alone!

For over 50 years the Local Government Act 1972 (S101) has told Councils that individual Councillors cannot carry out functions of the Council on their own. This was confirmed in case law at the Court of Appeal in 1986 (Hillingdon).

Consequently, any employment procedure which requires an individual Elected Member to act on behalf of the Council or Committee is potentially unlawful. This can include, but is not limited to:

·       An individual Councillor acting in the role of line manager.

·       Conducting Appraisals.

·       Conducting investigations into Employee conduct or performance.

·       Conduct interviews.

·       Conducting Probation Review meetings.

·       Entering into discussions or consultation with Unions.

·       Conducting sickness/wellbeing meetings.

·       Redundancy consultation meetings.

This is not exhaustive list, and Councils need to be aware that any HR activity that involves exercising managerial responsibility, decision making or making recommendations to the Council, falls within this remit.

What are the risks to a Council?

Councillors acting unilaterally to exercise management responsibility are doing so unlawfully. This can lead to Employees accusing the Councillor of exceeding their authority, and conducting an unfair unreasonable procedure.

So how should Councils do it?

According to the Court of Appeal in Hillingdon, two or more Councillors should do it. For their own protection they should only carry out such activities with a Formal Resolution from the Council or Committee. Furthermore, they should have detailed terms of reference which set out what they can do and the limits of their responsibility.

Won’t this overwhelm the Employee?

It would be reasonable to expect Employees to feel a little overwhelmed in an Appraisal, welfare meeting or disciplinary informal investigatory meeting, faced by two Councillors and being on their own. The Councillors do have a responsibility to explain to the Employee that this is what they are obliged to do, and it is as much for the Employee’s benefit as the Council’s. For example, having two brains conducting an investigation meeting can help iron out any uncertainties or misconceptions.

What if the Employee insists on having their Union Representative present to balance the numbers?

They need to be made aware that they have no legal rights for that to happen. The only legal right to be accompanied at a meeting applies to Formal Discipline, Grievance and Appeal Hearings, unless the Council’s procedures go beyond this and do allow Unions to be present.

2.    Heat of the Moment Resignations

Outbursts leading to Employees marching out and claiming to have resigned, are nothing new for Town and Parish Councils.

When faced with such events, it might be tempting for the Council’s management to say ‘fine’ and accept the outburst as a resignation. However, this can open the door to claims of Unfair Dismissal. According to Case Law, Councils shouldn’t seize on such an outburst as an opportunity to get rid of a problem person. Recent advice from the Employment Appeals Tribunal (EAT) is to:

1.     Give the Employee a cooling off period of 2/3 days.

2.     If they do wish to resign, ask for confirmation in writing.

3.     A considered letter of resignation, once given, cannot be unilaterally withdrawn.

4.     Be objective in assessing the words of the resignation. What would a reasonable Employer consider the letter to say? Would it be safer to offer the Employee the chance to reconsider and deal with their issues through the Grievance process?

5.     What are the circumstances that led to the resignation? Consider mitigating factors such as workload, health, personal circumstances.

6.     Claims by Employees that they will be resigning at some point in the future should not be accepted as a resignation.

7.     The EAT suggests that a reasonable Employer would need to consider if the resignation was “seriously meant”, “really intended” an/or “conscious and rational”.

8.     If an Employee “storms out” and fails to respond to reasonable attempts by the Council to contact them, the Council could accept the resignation, but time is an important factor. The more time that elapses, the greater the likelihood that the Employee hasn’t changed their mind. For this reason it would be wise to give the Employee 3/4 working days before deciding whether or not they are unlikely to return. The Council should make reasonable attempts to contact the Employee during this period, and offer to resolve their issues through the formal or informal grievance process.

PROFILE

Chris Moses LLM Chartered FCIPD is Managing Director of Personnel Advice & Solutions Ltd.  He is a Chartered Fellow of the Chartered Institute of Personnel and Development, and has a Master’s Degree in Employment Law.

If you have any questions regarding these issues please feel free to contact him on (01529) 305056 or email p.d.solutions@zen.co.uk

www.personneladviceandsolutions.co.uk