Employment of locum clerk while clerk away on holiday abroad

Question

At our last meeting, the chairman announced that the next meeting (later this week) would be clerked by a locum whom he named. It is a local clerk who acted for our council as a short-term paid locum several years ago. As soon as the chairman made the statement he closed the meeting, so there was no time to question who had made this decision, whether there were any costs involved, why the council had not been informed prior to the meeting at which this was announced, why it wasn't on the agenda to be discussed and resolved in a proper open manner etc. Suddenly - a few days before our next meeting on 17 March, our clerk emails members saying sorry that they can't attend the next meeting in person as they are on holiday in Australia, but they have made all the arrangements with the a named locum clerk to take their place at the council meeting, that these arrangements have been approved by our council chairman and there will be no cost to the PC. The clerk claims that this has been approved by our council chairman, however, the arrangements have been made without any information, documentation, let alone prior consultation with, discussion of or resolution made by the council where members have all the supporting documents in front of them at a convened meeting. There has been correspondence or papertrail or information about the arrangements (which appear to have been made more than a month ago between clerk/locum clerk/chairman) and there are no minutes relating to these arrangements. Our clerk in their email from Australia goes on to apologise for the fact that as they are out of the country they cannot provide the bank reconciliation for this month, we'll have to wait till the clerk returns from their holiday and approve it next month. Our clerk has issued an agenda that includes their full salary for the period they are on holiday abroad, and included the fee for the same period for the use of their home as an office for our council, even though they have not been in residence and therefore not present to provide members of the council or public with any face-to-face transactions/provision of hard copies of council documents etc. It seems that there is a distinct lack of transparency, openness, honesty and due process going on here - let alone democracy. I am concerned that our council appears to be operating a two-tier system (indeed this has been going on since S101 was imposed during the pandemic lockdowns) which means that decisions are being made ad hoc outside council meeting by the clerk, with the approval of and even the encouragement of one or two councillors (chair/vice chair), leaving the other five councillors out of the process, with those 'decisions' rubber stamped at the next meeting with no discussion or explanation allowed. Any criticism or queries are met with accusations of bullying, harassment and the matter promptly closed.

a) Is a sole employee (clerk) allowed to employ another employee -  in this case a locum clerk (whether or not that employment involves any cost to the council) off their own bat without the prior knowledge of the council or any instruction to do so resolved in a convened meeting by the council as a whole (the employer)?

b) Does a chairman have the authority to approve any/all of these arrangements in isolation, between council meetings and without any information being provided to the council to discuss and resolve upon prior to these arrangements having been made?
c) The clerk is also RFO so should provide all the required financial information

d) What can be done about the above? Is it a case for the MO or is there some other method of sanction? I am fed up with being vilified and my name blackened for raising these issues in public at meetings even though I am a councillor and feel I have a legitimate right to do so every time I believe actions have been taken by individual councillors/our employee without the council - fully informed - passing the appropriate resolution as an item on a published agenda.

Answer 1

As I have said before, the Clerk is the employee of the council and generally employed under a contract of employment, the usual version being a nationally agreed contract which sets out the clerk's holiday entitlement.  Most contracts generally provide for the clerk to agree periods of absence through the Chair as quite frankly infrequent meetings are impossible to manage such minor details in the day to day running of the Council.
Generally a Clerk/Proper Officer is empowered to make decisions on day to day matters to enable the council to continue to function where such decisions are consistent with existing policy (and this suggests that this is the case) and I'd suggest that if your clerk has arranged for a locum, one which has experience of working for your council in the past, to come and take the minutes at a meeting then that would fall within the Clerk's remit, especially so if there is no cost to the council to do so.
For the record, every employee (local authority or not) has a statutory right to paid holiday in accordance with their contract of employment.  The fact that the clerk is not residing in her usual home for the period of her holiday does not mean the clerk should not receive the agreed payment for the use of her home as your office.  Her home is still being the place where post is delivered, your files are being stored and as your sole employee, where she will be dealing with whatever is required that has arisen during her absence.  As for her job of providing a bank reconciliation for your meeting, well unless she's psychic, I'm guessing that she wouldn't be able to do that before her holiday and will provide the information as soon as she is able.   
You should not be raising matters which relate to potential disciplinary action (in your eyes) in a public meeting to do so really is bullying and harassment.  You should raise these in a confidential session not a public session.   The Monitoring Officer is not empowered to deal with employment disputes.  Could I suggest you contact ACAS for advice.

Answer 2

How was the decision to invoke Section 101 recorded in the minutes? Was there a time limit? Were the powers of delegation defined or limited in any way?

If the minutes show that the council resolved to delegate all decision-making to the Chair and/or Clerk for an unspecified time, you have given them the power to act in whatever way they wish and they may not be in a hurry to renounce their authority.

Comments

S101 was revoked last May 2021, but imposed again (to be used as and when required...) on advice of our ALC a couple of months ago - the vote was not unanimous but was carried.

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The advice of your ALC may not have been clear, or your council may have misinterpreted it. S101 is always available as a power to be used for individual decisions on an ad hoc basis, rather than applied in an open-ended fashion. It doesn't need to be invoked until it's required for a particular item of business and should be recorded in the minutes as relating solely to that item.

Many councils used this power as a knee-jerk reaction to the introduction of lockdown two years ago, although for some, this has led to problems in relation to disqualification under S85.

From what you've said, it does appear that you may have handed all of your decision-making powers to your clerk. S101 doesn't permit delegation to an individual member of the council. To rectify this situation, you should propose a motion to revoke the clerk's powers under S101.