Dealing with a Code of Conduct Complaint

COUNCIL NEWSLETTER

SEPTEMBER 2022

1.      DEALING WITH CODE OF CONDUCT COMPLAINTS

The question of how a Council should respond to Code of Conduct complaints against Elected Members, is one which we receive frequently.  Most Councils are aware of the need to refer such allegations to the District Council’s Monitoring Officer.  However, the practicalities of balancing the need to conduct a fair and reasonable investigation, and provide appropriate support to the Employee, with the statutory / legal framework of addressing complaints against Councillors can be confusing.

In the event that the Employee’s complaint ends up in a claim for Constructive Dismissal at the Employment Tribunal, the Council has to demonstrate that it has taken all reasonable steps to address and resolve the complaint, within a legal framework which heavily restricts what it can do as an Employer. 

The following is intended to give Council’s some practical advice on how to do that:

The Complaint Process

        i.            Upon receipt of any complaint, the Council or appropriate Committee should conduct an informal investigatory meeting with the Employee to establish if there are any issues that can be addressed by the Council, or is it solely concerned with the Code of Conduct.  This should be arranged within seven days of receipt of the complaint.

      ii.            If there are non-Code related issues, such as work environment, or hours of work, the Council could conduct a Formal or Informal Grievance process to address those problems.

    iii.            However, Code of Conduct related complaints would be referred to the Monitoring Officer by the Council, in accordance with the Committee on Standards in Public Life’s best practice guidelines.

    iv.            The Council should keep the Employee fully informed of the progress of the complaint.

Following a Reasonable Procedure

        i.            Most Town or Parish Councils are similar in terms of the size of their workforce to a small business or organisation.

      ii.            However, many try to emulate District and County Councils when drafting procedures, particularly those that are likely to be subject to legal scrutiny, such as the Grievance and Disciplinary process.

    iii.            Within larger Councils, it may be reasonable to appoint an independent investigator, to have a separate disciplinary panel, a note taker, and a completely impartial and independent Appeal Panel.   It is also common under a large Councils’ collective bargaining arrangement to enable the Employee to be accompanied at the informal investigation stage.

    iv.            ACAS Guidelines for small organisations are more streamlined.  For example:

       v.            In small firms run by an owner/manager there will be no alternative manager to raise a grievance with.   In these circumstances the Manager should treat all grievances objectively and fairly, even if the grievance is against them. 

    vi.            In the case of a small Council with 6-8 Councillors, all Members may well be aware of the grievance, however the same people could investigate it as well as conduct the Grievance Hearing, if it is not regarding the Code of Conduct.   Another three Councillors could hold the Appeal Hearing.   This would be compliant with ACAS Guidelines for small organisations, as long as the Councillors do so objectively and fairly.

  vii.            Councils who appoint external consultants to hold the Hearing as a means of achieving impartiality, are still responsible for deciding the outcome.  External Consultants are not part of the Council’s management.  Therefore they can only advise, not decide.

2.      THE BANK HOLIDAY CONUNDRUM

2022 has provided us with ten Public / Bank Holidays, two more that normal years.  In all likelihood we will face something similar in 2023 with the announcement of a Coronation.

So far in 2022 we have received a lot of enquiries from Councils regarding how to accommodate them when calculating holiday entitlement and pay for staff on NJC contracts. It is likely that the same will happen again in 2023.

If faced with a similar dilemma, hopefully the following will help:

·         Normal Years

For NJC contracted Employees with 5 years or more continuous service, the usual FTE holiday entitlement is 25 days per annum + 8 Bank Holidays + 2 Statutory days = 35 days.  If you divide that by 5 (days per week), you get an annual entitlement of 7 weeks per annum.  Staff with less than 5 years’ service have 22 days + 8 Bank Holidays + 2 Statutory days = 32 days, which is 6.4 weeks per annum.

Councils can calculate the holiday entitlement of part time staff by multiplying the Employee’s average number of days per week by 7 for those with 5 years or more, and 6.4 for those with less.  So if a long term Employee with 5 years’ service works 4 days per week, they get 28 days per annum (4 x 7). If they work 3 days per week they get 21 days per annum (3 x 7).

·         2022

This year the number of Bank Holidays has been 10.  This means that Employees on an NJC contract and who have 5 years or more service will get 25 days + 10 Bank Holidays + 2 Statutory days = 37 days FTE. Those with less than 5 years’ service will get 22 days + 10 Bank Holidays + 2 statutory days = 34 days FTE.

If this is divided by 5 days, long term Employees with 5 years’ service are entitled to 7.4 weeks per annum (37 / 5). Those with less than 5 years’ service get 6.8 weeks (34 / 5).

So a long term Employee who works 4 days per week will get 7.4 x 4 days = 29.6 days in 2022.  An Employee with less than 5 years’ service who works 4 days per week will get 4 x 6.8 = 27.2 days in 2022.

·         Holiday Pay for a Bank Holiday

All full time staff on NJC contracts will be able to take the extra day as paid leave, which will be part of their annual bank holiday entitlement.

Part time staff who normally work on the allotted day will also receive paid leave on the Bank Holiday as part of their annual Bank Holiday entitlement.

Part time staff who don’t work on the allotted Bank Holiday, and don’t normally get paid for that day, will not receive holiday pay on the day in question.   This doesn’t mean that they will miss out on the extra Bank Holiday, as it has been included in their holiday entitlement calculation, which is based on all Public Holidays for the year, not just 8.

Statutory Payment Rates

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