A sensitive question - Can a clerk work on forever?

Question

We have a clerk of indeterminate age who continues to work well past the normal retirement age after having been appointed as a part time employee in September 2006. The clerk also works for two other parish councils in the locality. The terms and conditions of employment are shrouded in mystery, as the 'Contract' is held by the chair and is not shared with members because of rigid application of the  'need to know' principles. There is no evidence that the council is involved with any taxation arrangements; No evidence of PAYE, no evidence that the clerk receives a pay slip, and payment is by means of a cheque each month, signed at the council meeting which covers hours worked, office allowance, and general expenses such as stamps and stationery as detailed in the minutes. This makes some members think that the clerk now works as a self employed person.

Three questions: a) If the clerk has a contract of employment should that be subject to an annual review after normal retirement age?                               b) If the clerk is self employed should that status also have a review and renewal process?                                                                     c) Can you point me in the direction of an 'Idiots Guide' that could give me chapter and verse?

Answer 1

Legally, employees can no longer be compelled to retire simply on the basis of age (see http://www.bbc.co.uk/news/business-15127835). However, employers have various options. An employer can compulsorily retire an employee on objective grounds, in effect on the basis that they are no longer able to carry out the work to a satisfactory standard. Or an employer can simply dismiss an employee along with an offer of compensation and (usually) a compromise agreement that binds both parties to confidentiality and it being a final settlement. Or the employer can simply negotiate with the employee, possibly offering a golden handshake as an incentive.

My feeling is that the contract of employment should not be secret. Commonly it is available to all and sundry when a vacancy occurs - often the contract is part of a bundle of documents available to anyone who expresses an interest in applying - perhaps available for download by anyone from a web site.  If it is not made public, it would certainly be my view that the councillors' common law right of access to council documents would cover the clerk's contract. A contract of employment should be reviewed periodically, not so much by reference to the age of the employee, but because law and best practice change over time. For general advice on employment contracts, see https://www.gov.uk/employment-contracts-and-conditions/overview.

A clerk cannot be self employed and a council that has a paid clerk must operate PAYE. This is plainly stated by HMRC at https://www.gov.uk/hmrc-internal-manuals/employment-income-manual/eim67300 and has been the case for some years now.