Has Ledbury failed Council Staff? (Grievances v Code of Conduct issues)

Has Ledbury failed Council Staff?

The Supreme Court’s decision in Harvey v Ledbury Town Council [2018] EWHC 1151 finally cleared up the confusion about what a Town/Parish Council could do with an Elected Member who breaches the Code of Conduct.  To put it briefly – Nothing.

According to Lord Justice Cockerill, the Government had previously addressed this question in the Localism Act 2011 Section 28(7)(iii).  According to the Act:

·       ‘an Authority must appoint an independent person whose views are sought by the Authority before it makes a decision regarding a member, or co-opted member, of a Parish Council, if that person’s behaviour is the subject of a Code of Conduct allegation’. 

·       ‘The authority is the Parish Council’s principal authority’. 

Cockerill LJ stated that to run a Grievance process in tandem with, or as an alternative to, this Code of Conduct process, would be contrary to the intention of Parliament.  That intention is that the Parish Council system should be aligned with that of the ‘superior’ local authority.

As a result, a Parish Council cannot address an Employee’s grievance if it concerns a Code of Conduct complaint against an Elected Member.  It has to defer to the ‘superior authority’.

However, Council staff are not Employees of the ‘superior authority’.  Their Employment contracts are with the Parish Council, who are obliged under the ACAS statutory code of practice to:

·       Deal with Employees’ Grievances ‘promptly and without unreasonable delay’, using their internal dispute resolution procedures.

·       Provide an Appeal Process.

Failure to follow these guidelines could leave a Parish / Town Council vulnerable to claims of having not followed a fair and reasonable procedure.

The dilemma for a Town / Parish Council when addressing Employee Code of Conduct complaints, is that it has to try and comply with both the Localism Act 2011 as well as ACAS Guidelines, both of which appear to be at odds with one another.  In our experience, it is not unknown for a complaint to the Monitoring Officer to take months to get resolved, with no right of Appeal.

It’s also not unknown for an Employee to run out of patience, resign and take a claim for Constructive Dismissal to the Employment Tribunal, based on a claim of unacceptable conduct by one or more Elected Members. 

Under these circumstances there is a school of thought that Town / Parish Councils should be able to resolve their own affairs on Code of Conduct complaints, and conduct the Employee’s Grievance Hearing.  Should the Grievance Panel find that an Elected Member may have breached the Code of Conduct, they would refer that Councillor to the Monitoring Officer who would assess the Council’s findings and decide what would be an appropriate sanction.

As a result, Councils would have an opportunity to resolve the Employee’s complaint promptly and provide them with an opportunity to Appeal should they wish.  In so doing this may remove the likelihood of a resignation and claim for constructive Dismissal.

However, there are also other courses of action available when addressing Employee complaints.  A Council can still:

1.     Conduct an informal investigatory meeting with the Employee to find out if any element of their complaint isn’t a Code of Conduct issue, and deal with it.  Even if the whole issue is a Code of Conduct complaint, the Council can still demonstrate that it has taken the matter seriously by conducting a prompt and efficient investigation; as required by the ACAS guidelines.

2.     If the Employee’s health has been affected by the alleged conduct of an Elected Member, the Council can carry out a full and proper investigation.  This would be done by referring the Employee to an Occupational Health assessment, and then carry out the Doctor’s recommendations to make the workplace safe and protect the Employee’s well-being.

3.     In the event of potential criminal complaints; such as abusive and threatening posts on Social Media against the Employee; the Council can support the Employee in approaching the Police to pursue criminal action under legislation such as the Malicious Publications Act 1998, Protection From Harassment Act 1997 or hate crimes.

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