Vice chairman claims GDPR stops councillors inspecting Clerk's contract

Question

I'm a councillor in a small parish that employs one member of staff - our clerk/proper officer/RFO. Last weekend I asked to see a copy of the clerk's contract in order to raise a question about a staffing matter at our next meeting. However, the vice chairman says that councillors are not allowed access to the contract of employment for the clerk as to do so would break the council's GDPR rules. I pursued my request and the chairman has come back to inform me that it is our local ALC adviser's opinion that: "the Parish Council has a significant duty of care to the employee and the "need to know" doctrine applies. There are significant dangers for the Local Authority (in this case Parish Council) regarding handling personal data. It is not considered good practice for individual Councillors to possess a copy of such documents. They should only be discussed in a limited environment (closed session) and only then when a justified reason for doing so has been established." 

 I don't understand how the ALC statement chimes with the Good Councillor's Guide section 6, Rules for Employers which states: "Remember, the clerk is employed by the council and answers to the council as a whole. No one councillor can act as the line manager of either that clerk or other employees."

The chairman of our council reports that our local ALC's opinion is that: "There is no role for an Individual Councillor EXCEPT for the Chairman who is quote, " the figurehead employer/line manager and has day to day micro management roles."

I am told that the  ALC's opinions above are shared by the ALC's locum solicitor. 

I am concerned that there is no proper definition of exactly what 'day-to-day micro-management' of an employee means when it comes to matters like the clerk's annual appraisal, pay grades etc, plus the cost of locum clerk arrangements to cover absence due to sickness/holidays etc. 

 

Answer 1

The Vice chair is wrong and has no authority to prevent the council  i.e. any of the Councillors having access to the contract.  The clerk is answerable to the council - that means all or any of the councillors.  The only personal data on the contract should possibly be the Clerk's name, which the councillors will already know.  There is no reason for any details of personal sensitive data to be recorded on the contract.  Even if it was, the Council i.e. all or any of the Counclllors are the data holder and must have equal access.   The chair is not empowered to act as the Clerk's line manager.  If there is no designated staffing committee, all the cllrs are the Clerk's line manager.

Comments

Thank you Graham - we don't have an employment committee, so what you have written is what I thought was correct especially as it follows the apparently unequivocal ruling in the Good Counsellor's Guide about the chairman's role. Does that ruling appear in the 1972 Act - I don't have access to an Arnold Baker  but would be grateful if someone could provide me with chapter and verse. What our ALC's adviser seemingly supported by a locum solicitor has written completely contradicts the Good Councillor's Guidance which is why I am so confused. I have also been treated with open contempt and some vile comments copied to all members and the clerk by fellow councillors for having the audacity to raise the matter and asking for a copy of the Clerk's employment contract. I have also been accused of bullying and harassment for pursuing the matter. My concern is that I am not able to talk or write to our local ALC to put my questions to them directly - only the clerk, chairman and vice chairman can do that - and I cannot be sure that my concerns are accurately and fully conveyed to the ALC because I'm not privy to their correspondence - I usually only get the clerk/chairman/vice chairman's 'take' on the ALC's advice (which I can't see to check and digest) plus a sprinkle of quotes that I have to accept at face value not knowing whether they have been taken out of context. . Transparency? I don't think so. It is a pretty poor show given the expensive annual subscription paid by councils to their ALCs, and makes it very difficult for 'ordinary' councillors to do their work fully informed and confident of the facts..
If I am blocked by my clerk and chairman, how can I gain access to the contract and clerk's job description?

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I would submit a freedom of information request for it, but do it via this site https://www.whatdotheyknow.com/.  You will have to register and may have to register your body as a public body. If the request is refused, and the council do not change their minds after you call for a review, you can then submit a complaint to the Information Commissioner. The IC ruling must be adhered to. And by using the site, the message trail will be in the public domain for all to see. You have highlighted another issue with NALC their failure to understand that restricting access to their resources to named individuals in councils is actually counter productive and bad practice on their part.

Answer 2

I think there is some confusion here - you may wish to ask to see a blank contract that covers your council as opposed to the clerks contract which is a signed document that is covered by GDPR. Most clerks are on a contract aligned with the NALC template so the contents are generic

Comments

But this situation is ridiculous and counter productive. I saw the completed contract when the council made its decision some three years ago to appoint the clerk - ie at the meeting at which the contract was inspected, discussed and decided upon (in camera obviously) at a convened council meeting. So why I am being denied access to the contract document now? There are no signed minutes to suggest that that contract has changed since it was first agreed by the council and signed by the employee. It makes no sense for our ALC (and thereby our Chairman) to insist that councillors have no right to see staff contracts. Indeed I believe it is insulting to our electors to suggest such a thing and insist on denying that right. Council members are the legally-appointed decision-makers who are charged with protecting the public purse by ensuring that every decision we make is done in an open, transparent, lawful, unbiaised and honest manner in order to show that due process has been followed in every instance and that good value for money has been achieved. How are we expected to do this in the dark? It is not only important but also necessary for all councillors (the council and therefore the employer) to see their employee's contract on an annual basis in order to review its contents and ensure they still apply and where necessary should be reviewed and updated . This would need to be undertaken by the full council every time an employee's salary rise has to be considered and resolved upon by the council as their employer, and the recipient of the precept. It is also a contractual duty of the employer to know the details agreed with the member of staff regarding a) holiday entitlement and conditions, b) sickness agreements; c) locum cover and costs; home office and equipment status; risk assessments, insurance cover, health and safety requirements etc. Our council used the standard NALC contract which requires the member of staff to consult with the council before taking holiday - I guess in order for the council to agree the dates and make any necessary arrangements for locum cover - including obviously any costs to be paid to a locum clerk.
There is no minuted evidence that that has ever taken place to date..
Yet, at every ALC training session I've attended (paid for out of public funds) the training manager has impressed upon attendees the importance of councillors making fully-informed decisions on all council business; and that they can only do so having had all the related paperwork/documents/contracts/reports provided to them by the Clerk at least three working days in advance of meetings and insisting that if supporting documents are not provided prior to meeting the item cannot be addressed as due process has not been followed. However, it appears from my ALC's response about councillor's inspecting their employee's contract and job description that GDPR is being used as a convenient excuse and useful to keep these documents hidden and only available to a select few on a spurious 'need to know' basis.
How can council's insist on members abiding by the Nolan Principles only to ignore them when it suits a few members (ie Chairman and Vice Chairman) who according to other rules have no superior authority or delegated powers from any other councillor.
I am completely confused by what appear to be a set of double standards that seem to have been plucked from the pages of Animal Farm. It seems to me that the whole role of the council and its ability to properly check on the probity of the employment documents relating to its staff has undergone some kind of metamorphosis which leaves the unelected staff rather than the council (ie the elected members) making decisions on behalf of residents. This cannot be right.
Also, how could any council required to decide upon a construction or any other project to be paid for out of its funds be able to come to any proper resolution on its suitability and affordability unless all councillors have had advance sight of any proposed contracts?

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It’s not the contract that is under GDPR but the personal details contained within name address, signature etc.

Forget it being a council, think of at any other place of employment when have you known staff contracts and sick records to be to be freely available?

Now looking back at the council, the clerk or any other staff are entitled to a right to privacy. Once a contract is signed, it needs to be remain secure.

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Thank you - I understand what you have written but how can the name and address, and the signature on the contract of employment be prevent members of the council (the employer) from seeing the contents of the contract as every agenda published on village noticeboards and the council website publish the clerk's name, address, phone number, email address and even their signature at least once a month in the form of public notices of parish council meetings. It cannot be said that members of the council don't know their employee's name/address etc when they have seen them on public documents year in year out, and also on the Clerk's contract of employment when the councillors voted to employment them. This ruling cannot hold water especially when it under Common Law a serving councillor has the right to inspect any/all council documents in order to do their job and be fully informed.

Answer 3

You may wish to consider asking the view of the Information Commissioner's Office. There is a live chat facility on their website and also a helpline if you prefer.