So, are you, as an individual Cllr, the employer of council staff - discuss

Question

To take this individual question away from derailing an earlier thread, it is presented as a rhetorical question solely intended to generate thought / debate rather than to arrive at a definitive answer.  (I already know what the answer is );o)

0. The case of Heesom v Public Services Ombudsman for Wales and Hughes v Ledbury Town Council are relevant.

   The case law makes it clear that a the quasi employer/employee status exists between a Councillor and an officer of the Council and whilst the management of the officer may be delegated to a Committee this does not remove the fact the Council, and therefore the individual Cllr, is the employer.

Answer 1

That doesn't seem right at all. A council is a corporate body and as such is a legal person. The council is undoubtedly the employer.

Clearly council decisions are made by councillors acting collectively. Councillors will also have a working relationship with officers. The Heesom case includes the comment "there was a mutual bond of trust and confidence between councillors and their officers".

That is very far from claiming that the councillor is the employer.

Comments

The corporate council is the employer.  The corporate council is comprised of individual Cllrs - therefore the Cllrs are the employers.

This is where 2 separate strands of thinking combine to [seemingly] conflict with each other.

Strand 1 - [developed and endorsed by the likes of NALC /CALCs/SLCC etc] is that no individual Cllr can be the boss of the clerk.  Agreed - it should be a committee.

Stand 2 - [utilised by monitoring officers in the process of CoC complaints for example for "bullying" by Cllrs of staff] is that a Cllr IS, as an individual, the quasi employer of the staff by virtue of being a Cllr.  This is quite clearly articulated in the Ledbury judgement.

It would seem [to me at least] that both strands cannot co-exist but they do appear to and they do appear to be relied upon according to whatever set of circumstances prevail at the time.

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That is a non sequitur. The council is a legal person. It is not "comprised" of any other person. That there is a relationship between councillors and officers is not in question, but calling  it "quasi employment" is tendentious. Should I take it you are referring to the case of "R(Harvey) v Ledbury Town Council [2018] "?

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Well ... if you are right RAC then I hope the Councillors on here have increased their insurance to cover claims for wrongful/unfair/constructive dismissal.

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IMHO, the point is akin to claiming the principal shareholders of e.g. McDonalds are the employers of the people flipping burgers. They're not.

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For counterpoint, I disagree non sequitur - it may be that you don’t follow the principle, but that is not the same as the principle not following.
The council is a legal person? You want to expand that??

More broadly in response to subsequent post, Now as to whether people want to disagree for the sake of it, and that’s OK, the words in the orig post are not mine - they are an extract from a MO complaint finding (hence the font.) So I’m not saying it’s ‘right’ that each individual Cllr is a quasi employer (although I tend to agree) what I am saying is, those are the quoted findings of a LA legal officer and that it also appears to be supported by the referenced higher legal case law.
So, on the one hand there IS an almost hysterical application of the mandate that no individual Cllr is boss to the clerk and yet each individual Cllr IS (by example) held responsible / liable as a quasi employer.
What I’m progressing is the ridiculousness of the two situations apparently co-existing.
For Barry - perhaps not the shareholders, nor the consumers of the product (just to take the example to its most ludicrous extreme - CEO though, corporate manslaughter….  Entirely credible so thanks for the example.

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Principal shareholders take votes on positions and directions a company should take. Sounds pretty similar to being a Parish Councillor to me!

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May sound similar, like dog and bog, but you'll have a long day whistling a bog to bring a ball back.

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Oh obviously you wouldn't get a bog to bring a ball back, but you also wouldn't get a CEO on a corporate manslaughter charge either. As the name suggests, it's a crime a corporate entity commits, not an individual. As mentioned elsewhere in this discourse, the people involved with a corporate entity (including a parish council) are legally separate and distinct from the entity itself.

I can only tell you the truth, I can't make you believe it.

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Straw man…..

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I don't see a conflict. Nor can I find any report of the Ledbury Town Council case that uses the phrase "quasi employer". It isn't clear what it means, and given that it certainly isn't the same as being an employer, there is no conflict. It is a fundamental legal principle that a corporate body is a legal person. What that means is that a council can own property, sue or be sued, and so on, in its own right. Even if every councillor resigns, a council continues to exist. This is different from a partnership, where the partners can collectively act, but if all the partners leave, the partnership ceases to exist. Likewise a sole trader is a single person - legally the trader and the person are one and the same. Councillors have a responsibility to implement the employment relationship properly. The question of whether a single councillor can manage officers is nothing to do with employment law or the legal nature of a council, it is a question of democratic accountability and relates to the principle that individual councillors cannot act on behalf of the council.

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Sorry, are you suggesting that pointing out an example demonstrating that people are legally distinct and separate from the corporate entities they are associated with is a strawman argument to your premise that, as the Council (a corporate entity) is comprised of Parish Councillors (people), the Council "is" the Parish Councillors? I thought it was the heart of the matter!

Would it also be a strawman argument to point out that if all the councillors resigned, the officers of the Council would remain employed by the Council? Your premise applied here would not only result in leaving all the officers unemployed, but the council ceasing to exist!

If you don't mind me saying, I think your entire premise is flawed as it creates a paradox. Under its conditions, the Parish Council can't exist with no Parish Councillors and you can't be a Parish Councillor if no Parish Council exists. If you look at the actual case, nothing about the being, existence, powers or authority of the Parish Council is derived from the being, existence, powers or authority of a Parish Councillor. A Parish Council is enduring. It's powers, rights, privileges and limitations are delegated to it when it is legally created and through subsequent law passed by government rather than delegated to it from it's Councillors. In fact, any rights a Parish Councillor has are delegated from the Council - as required by law - when a Parish Councillor-elect signs (i.e. accepts) the Council's offer of a position at the table. An "acceptance of office" has legal meaning; you are accepting terms put on you. You aren't directing, ordering or instructing the Council, it is very much the other way round. If you don't submit to the terms the Council puts on you, you don't take your seat. The role is to make decisions for the Council when it asks you to on things it wants a decision on. It's not to "be" the Council.

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Both Counterpoint and Barry are arguing against a point which exists only in their own counter argument - hence STRAWMAN.

The question has no part which seeks to explore or expand the corporate or organisational status of the council.  That is the part that the 2 contributors have introduced to the discussion instead of focussing upon the question at hand.

There is no dispute over the status of the council.  The discussion point is that it would appear that both the council and individual Cllrs are deemed to have 'employer' status over the employee.
It really is that simple and the distraction is somewhat frustrating.

Specifically for CP - at no point did I state that the phrase "quasi employee / employer" was within the Ledbury judgement - I hope you didn't spend too long looking although para 145 would have provided some of the broader flavour of how the assessment might have been made since it references individual Cllr EMPLOYER status wrt council employee(s).  It does't provide a silver bullet as an answer to this question but it does provide the basis upon which the question properly stands.  What I actually said was that a LA legal officer had quoted the extract which I have reproduced in the OP.  The phrase quasi employee / employer is that of the LA legal officer having regard to the 2018 approved judgement.

Also, in response to "...The question of whether a single councillor can manage officers is nothing to do with employment law..."
Au contraire Rodney!  The examples are not that of a single Cllr "managing" an employee, but rather that of a single Cllr influencing, effecting, impacting an employee and that old bean absolutely DOES have a great deal to do with employment law.

For Barry, the STRAWMAN is your apparent desire to answer a question which hasn't been asked - except in one of your previous straw man replies.  Get back on topic old chap - we are discussing whether a COUNCILLOR may be considered as an individual employer AS WELL AS the council being the corporate employer (for which there is little opposition.)
OK - so - as expected - it is another example of rather firmly held opinions being seemingly unreconcilable amongst chums.

What we all (well, those of us that are interested in the outcome) need to do is perhaps to pose the question to our relevant Monitoring officers and county associations.  Like I said at the outset, the quote I use in the OP is from the MO of my LA so I know what their view is.

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Councillors are not employers of council officers. That's all there is to it.

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A compelling case );0)

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RAC - You posted the OP. CounterPoint answered. In the response to them, you stated "The corporate council is the employer.  The corporate council is comprised of individual Cllrs - therefore the Cllrs are the employers.". Everything since has been to refute that notion and to prove to you why it is not the case. You refused to consider the points being made, bemoaning they are  strawman arguments to your original post. I just don't know what you expect from this?

The answer is as CounterPoint described originally. As Councillors, we make decisions on behalf of the Council. You have to make sure those decisions are legal, fair and derived without prejudice or under duress. If those decisions aren't made correctly or lawfully, they can be challenged which may result in the Council being sanctioned in some way or the decision being overturned, but never is the Councillor at risk in those situations. It is the Council who is legally responsible for the staff it employs.
That being said, it doesn't take away from a Councillors personal responsibility to the Council to treat others with respect, which is the grounds for most bullying claims. And if there is a complaint raised against a Councillor by an Officer, the Councillor has to be sure that any vote they partake in subsequently on a staffing matter isn't prejudiced by the complaint being raised. They've got to vote from the Council's point of view and I'm sure this is what your monitoring officer was trying to convey by suggesting councillors have a "quasi employer" relationship with officers.
By voting from the Council's point of view, it may appear like you are the employer, but you aren't really (the definition of "quasi"). This actually complements the other stance you laid out from NALC etc that says a councillor is not the employer of an officer. So where is the conflict? It only seems to come from your misunderstanding that the Council "is" the Councillors. Nobody else has suggested that this is the case and it's the entire basis for your argument that the Councillors are the employers of staff.

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... and in addition Barry, I have found the posts from RAC to be patronising and, on occasions, insulting.  I have taken the personal decision not respond to any of his/her future posts.

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I suspect what you really find uncomfortable is the frequency that your posts are contradicted or highlighted as sub-optimal.  Never mind.

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John>> I'm inclined to agree, but someone who talks such nonsense with such confidence needs to be countered on a forum such as this. Otherwise the "wrongness" spreads and before you know it, you'll have Councillors doing all sorts, like dumping unwanted refrigerators on playing fields based on the 'Councillors "are" the Council' philosophy (which obviously means Council-owned land is just an extension of a Councillors back yard, right?) or making personal purchases through the Council using the Council's money - if it belongs to the Council, it must belong to individual Councillors, right?

Having said all that, the vote up/down buttons are massively underused on this site - it'll probably be easier to use those to agree/disagree in future!

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Your comment illustrates EXACTLY the point that needs to be highlighted.
We are having a 'discussion' and we disagree - there is absolutely NOTHING unusual, irregular or to be frightened of in that situation.

There has been insufficient discussion, so far, to cause either party to change their point of view.

What that means is we are EQUALLY immovable until sufficient justification is presented.  Doesn't make 1 right and the other wrong, it just means we disagree.

This can't be the first time somebody has had the confidence, you might think temerity, to disagree with you?  Maybe it is?

Did you seek the opinion of your MO or ALC?  Or are you too arrogant for that?  I am writing the email to mine immediately after I've typed this.
My only interest is in having a lively discussion, if having somebody disagree with you is so disagreeable for the 2 of you, you probably have some issues which you need to address....

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I've  just emailed my area MO and ALC asking for their considered opinion.  Whatever they reply I will post and if I am served up a hearty portion of humble pie so be it.  I hope everyone has an equal appetite.
Note for Counterpoint - I also just noticed, in the original post, where I cut & paste an extract of a MO statement which states that the "...individual councillor is the employer..."  (it does say that and it is a direct quote) it also references Hughes v Ledbury Town Council (again, it was a cut & paste) but I believe, and have sought clarity, that it may have been a typo whereas it should have read Harvey not Hughes (particularly since it is para 145 of Harvey v LTC which appears (to me) to be relevant to the discussion.)
I am presenting the verbatim quote of the MO of the 3rd largest unitary authority in England.  If he is wrong, then I am wrong and I will have the good grace to acknowledge it.

Barry and John are presenting opinion.....

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Just happened across this article with a Cllr being found, by the MO, the independent person and the standards committee to be required to:

…undertake training on responsibilities as an employer within three months of the date of the response letter (February, 2022).

As an EMPLOYER, maybe that MO is also wrong and the INDIVIDUAL Cllr really ISN’T an employer….


https://shotleypeninsula.nub.news/news/local-news/peninsula-councillor-has-been-handed-further-sanctions-after-failing-to-comply-with-recommendations-following-code-of-conduct-breaches-172426?fbclid=IwAR1WlS79LiynazqUHiJ2Pdc2JoFjLffiIDb-IdmIGj1MGpH15okyYWAHhcY

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Why are you making such heavy weather of this? While a local authority, like a company, is a legal person, it plainly only comes to life with the actions of people. The council is the employer. There really isn't any question about that. Councillors bring the council to life, and therefore have to implement sound employment practices. This is no different from the position of a manager in a company. You can call it "quasi employment" but that term is causing confusion. Neither councillor nor company manager is the employer. There is no conflict.

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Why do you think someone would be directed to undertake responsibilities as an employer, if they are not an employer?

It’s not “me” saying it, it is the MO for West Suffolk…

Must be misguided or not understand his job  I guess….

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Because, as I stated above, Councillors have to act as an employer in terms of how they vote on matters; they have to put any personal prejudices aside. You'll notice they DIDN'T say "undertake training on the responsibilities OF BEING an employer". Johnny Depp can act as a pirate. It doesn't make him a pirate!

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Did you seek clarity from your MO / ALC or are these still just opinions / interpretations?

If nothing else, the thread should be making people think / question preconceived and deeply entrenched beliefs.
By my tally, we have the EXAMPLE of 2 MO uses of the phrase EMPLOYER in relation to an individual Cllr and the reference to an individual Cllr as an EMPLOYER in para 145 of LTC judgement and we have 3 contributors here expressing their personal opinions to the contrary….

I’m still open to persuasion either way but it’ll need something rather more compelling than what has currently been served up.

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Barry >>
“…as an employer…”
“…of an employer…”

That’s the basis of your argument?

I wouldn’t bet the mortgage on that - would you?

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The basis of the argument is the simple facts of law. Look, for example, at the fact that the council must operate PAYE for its officers. Who do you suppose is registered with HMRC and makes returns in respect of council employees? Individual councillors or the council? You're digging yourself into absurdities by putting too much stress on forms of words. If you suppose councillors are the employer, which councillor is the employer? They can't collectively be an employer unless they are in some legal form that allows them to act as a single entity. The only possible entity that excludes the council itself would be a partnership. But councillors most definitely are not a partnership. Have you accepted that the council is a legal person? if so, on what grounds are you attempting to say that the council is not the employer? I'm asking for a legal argument, not for fragments of opinions. That councillors must implement employment policies no more makes them the employer than does the same thing for a company manager.

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No, the difference is OF BEING to ACTING AS and yes I would bet the mortgage on it. Has your council ever executed a deed? Check the execution line and you'll find something like "Executed by XYZ Council acting by Cllr John Doe". It might be a surprise to you, but some people, particularly legal people, choose their words very, very carefully because they have a precise legal meaning. The use of the phrase "acting by" is very much to imply that the duty is bound on the Council rather than the individual Cllr signing the document.

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For CP >> the premise of the question is NOT (never has been) that either the council OR the individual Cllr is the employer.
The question was never framed in that premise - it couldn’t be and it wasn’t.   That would present the absurdity you seem to be labouring to present. Stop, that is the non sequitur you previously argued.
The discussion is the apparent scenario where BOTH the council AND the individual Cllr can be, under certain circumstances, BOTH (apparently - evidence) considered as the employer.
I have never suggested the council is NOT a / the “legal person” and neither have I argued that the council is NOT the employer.
Here it comes - this is the entire point of the discussion - there are elements where BOTH the council AND the individual Cllr ARE BEING considered as the employer.
The straw man is that you seem to be arguing a point which is not contested.
It’s not either or - it is the apparent application of the definition of employer to BOTH the council AND the individual Cllr.
Nowhere have I argued that the council ISN’T the employer.
Are you able to agree that - it appears - that MOs are referring to individual Cllrs as employers?

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People use words carefully - I agree entirely.
Do you think people should also READ. Words carefully?

If yes, do you think you might?