Fighting Fires - the new employment legal framework

COUNCIL NEWSLETTER

MARCH 2022

Fighting Fires

Conflict between Councillor and staff in a Town/Parish Council is nothing new, but such problems are disruptive and damaging.  What is relatively new is the legal framework in which Councils have to operate to address such problems.

The basic legal principles are:

1.     The whole Council is responsible and accountable for the conduct of individual Elected Members.

2.     If an Employee is unhappy with the conduct of their Employer, the normal course of action would be to submit a Grievance.  According to ACAS Guidelines a reasonable Grievance Procedure should address the Employee’s complaint promptly and without unreasonable delay.

3.     Unacceptable conduct on the part of a Council, which can include unacceptable behaviour be Elected Members as well as failure to address a Grievance, gives an Employee the option of resigning and taking their complaint to an Employment Tribunal under a claim for Constructive Dismissal.

4.     However complaints about the conduct of an Elected Member can only be addressed by the District Monitoring Officer (S28 Localism Act 2011).

5.     A Council cannot conduct a Grievance process at the same time, or as an alternative to, a complaint to the Monitoring Officer (Cockerill LJ Harvey v Ledbury 2018).  In other words a Town/Parish Council cannot conduct a Grievance Hearing to address Employee complaints about Councillor conduct. 

This creates a dilemma for Town/Parish Councils.

The Council is responsible for the conduct of all Member and has a legal obligation to protect Employees from unacceptable conduct.

The process required to meet that obligation is set out in the ACAS Grievance Guidelines.  Failure to do this can result in expensive claims at the Employment Tribunal.  However, the legal framework detailed above prevents a Council from addressing conduct complaints through its own Grievance Process.

Furthermore, the need to refer the complaint to the MO can result in the matter being delayed and not being addressed promptly and without unreasonable delay, as required by the ACAS Guidelines.

It is not unknown for Employees to run out of patience and resign so that they can take a claim to the Tribunal, rather than continue to be subject to unacceptable conduct.

Naming a Problem Councillor as Co-Respondent

In submitting a claim, the Employee can also name the Councillor(s) whose conduct caused the problem, as co-Respondents.  As long as the problem Councillor(s) has also been involved in the ACAS Early Conciliation process, and the Elected Member(s) fail to settle through this process, they can be named as separate Respondents.  This creates a number of problems for the Council and Councillors in defending the claim:

1.     Both parties will need their own legal defence team, which can be costly (although the Council may have free legal cover in their Employer’s Liability Insurance Cover).

2.     The two legal teams may be pursuing different defences, which may contradict one another, thus creating a confused and possibly ineffective defence.

3.     One side may choose to settle the claim before the Hearing.  This leaves the remaining Respondent with a greater challenge to defend themselves.

There have been incidents where this has happed, and the Claimant’s (Employee’s) legal team have approached a Council to inform them that the Complaint is not really with them, its more about the problem Councillor. Consequently they are willing to settle for a nominal amount such as £500.  The Council has little option but to settle to removed any risks and protect public money.  This leaves the Councillor whose conduct caused the problem as the sole Respondent, with the risk of personally having to pay the full award if they lose, which can amount to tens of thousands.  (A claim for Constructive/Unfair Dismissal can result in an award of up to 52 weeks wages.)

Making a Protected Disclosure

There is a potential pitfall for Employees considering this course of action.  Claims for Constructive Dismissal can only be brought by an Employee once they have accrued two years continuous employment.  However, there are exceptions to this rule, one of which is if the Employee can claim to be a Whistle Blower, as a result of making a Protected Disclosure.  An Employee can claim to have made a Protected Disclosure if they inform their Council that:

1.     The Council is committing a criminal offence.

2.     The Council is failing to comply with its legal obligations.

3.     A miscarriage of justice has occurred.

4.     Health and Safety is being endangered.

5.     The Environment is being damaged.

6.     The Council is concealing one or more of the above.

7.     It is in the public interest for the Council to be made aware of these issues.

Having made this disclosure, the Employee can claim Whistle Blower protection.  This means that if they suffer any further detriment following this disclosure, they can claim Constructive/Unfair Dismissal against the Council without the need for two years continuous employment.

Examples of this have included Elected Members breaching an Employee’s legal rights under GDPR legislation (Data Protection Act 2018) by informing third parties of sensitive personal data concerning the member of staff.  For example Facebook/social media comments about an Employee.  If the Employee subsequently informs the Council that it is failing to comply with its legal obligations under the 2018 Act, they can claim Whistle Blower status.  If they are subject to further unacceptable conduct they may be able to take a claim against the Council, and the Councillor as Co-Respondent, to the Employment Tribunal, regardless of their length of service.

It is sad that an Employee would have to resign to address the unacceptable behaviour they had been subject to, and they would need plenty of evidence to support any claim they wished to make to a Tribunal, but unfortunately this is not uncommon.

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