How to deal with an underperforming Clerk?

Question

Our Parish Council has an elderly Clerk, who doesn't use any modern digital tools, can barely use Word, doesn't use Excel, and can't manage the Parish Council's website page. He/She works part-time and has two other jobs, which obviously have greater priority, which means that draft minutes only come out within a month of the meeting if there is another meeting within the month, and key documents have never made it to the website, creating a huge issue around transparency. His/Her argument is that using this technology and managing the website isn't in his/her job description. The Parish Council has never managed his/her poor performance. He/She isn't qualified and doesn't undertake any CPD training, so the advice isn't always up-to-date. The Parish Council keeps him/her on because they are "cheap".
I know that newer councillors are trying to resolve the situation, but the old guard doesn't see any problem and won't hold him/her to account. What can be done? The website is the principal tool of communication today, so missing information is a big problem. Can this be outsourced, without the outsourcing having to be managed by the Clerk? Also, the minutes seem very partisan, you can tell that the new councillors are not in favour, how serious a problem is this?

Answer 1

Does your Clerk have a job description and contract of employment?  If so, do these documents clarify the Council's expectations in this regard?  Is the Council following the procedures set out in these documents for periodic performance appraisal?  If not, you might find it helpful to start doing so and to set a clear list of targets, such as complying with the Transparency Code.  Once this has been agreed, you will have a basis for determining whether or not performance has been adequate and a framework to address non-compliance.

It is not uncommon for a parish council website to be in the hands of somebody other than the Clerk, and there is no need to pay a web company for this service.  If you have a member of the council willing to take it on, that is usually the most viable option.

As for the minutes, they should be statements of fact, so I suspect from your observation that they may be too detailed.

Comments

Thank you for your reply.

I understand that there is no JD and the contract is from 30-40 years ago. So there isn't any mention of anything like performance management in the way in which it would be addressed now. The Clerk's argument, in terms of doing anything "new", is that it isn't in the JD. As a consequence, he/she doesn't actually fulfil the role of a modern Clerk.

What about the partisan nature of the minutes. Is this evidence of a breach of the duties of a Clerk?

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Is a copy of the old contract of employment available?  A contract would usually refer to a job description as a separate document, so if it does, and there isn't one, you need to create one.  If there is an old contract that doesn't comply with modern requirements, you must, by law, provide a new contract.  Failure to issue a valid contract of employment carries a fine.  The Clerk cannot argue that it isn't in the JD if no JD exists.

The current NALC model contract includes provisions to add new duties to the role, so look for similar in the old contract (although it may not be there).  If your Clerk is using a computer to prepare the minutes etc, he/she has formally acknowledged the need to change working practices to adapt to a changing world, so I'd be tempted to propose the adoption of the new model contract and job description, using the argument that they are required to make the Council fully compliant.

I wouldn't use the minutes as evidence, as there are no specific rules regarding what should or shouldn't be included or how it should be stated.  We only have a series of good practice guidelines and it is up to each Clerk to adopt their own style.

Incidentally, you mentioned in your original post that the Clerk is cheap.  A Profile 1 clerkship on the National Agreement carries a substantive salary range of SCP18-22 on the old scale, currently £10.14 to £11.19 per hour (pay award pending).  That's a starting point of less than £1.50 above the National Minimum Wage, so if you're a Profile 1 Council, appointing a new Clerk is unlikely to break the bank.

Answer 2

Hi,

So this is an area that you need to be careful with including your language. Saying the Clerk is elderly can be perceived as discriminative language which can find the council in court, just be mindful of that.

As Davetheclerk has mentioned you need a full review of your paperwork and policies relating to employees. Do they have a role profile and contract?! Surprisingly many councils have come unstuck with this. There’s been many cases of Cllr’s coming and going and the Clerk being the longest serving person in the council and therefore nobody has thought to check.

Remember that any discussions regarding your employees needs to be confidential and therefore behind closed doors as any meetings. The Clerk does not have the right to be present at such discussions but it is at the councils discretion.

If the Clerk doesn’t have a role profile or contract then you can introduce one but must give notice of this up to a maximum of 12 weeks if they’ve been there a long time.

However the Clerk does NOT have to accept these changes and if they don’t you’re in a difficult spot. To dismiss them could be perceived as unfair dismissal in a tribunal.
You could potentially make them redundant, however you can’t replace a position like for like after redundancy and so you would have to make enough changes to the role for it to be considered ‘new’. In your case this could be the website, use of Office (word, excel etc). This shouldn’t be too difficult if they don’t have a contract.

Another step you could take is an ‘without prejudice pay offer’. This allows you to offer an amount of money to the employee for them to resign (must meet statutory minimum for redundancy). They do NOT have to accept the offer but you or they could put the offer on the table at any time, but be careful not to do it too often as it could be seen as harassment.

IMPORTANTLY the employee can NOT take you to a tribunal for making this offer, nor can they do so if they accept it.
You mention in your question that they’re under-performing. You need to be careful here. Are they underperforming or do they simply have no role profile, contract or 1-2-1 appraisals. The council can’t just issue tasks without justification or the employee does have the right to refuse.

There’s no doubt about it this is a minefield but not one that should be completely avoided because clearly there is an issue.
I would suggest that you clearly make a list/report of your concerns and speak with a representative of ACAS (FREE) who will give you confidential advice and a way forward.

It’s worth discussing with your Clerk the current and future needs of the council and state the council is happy to offer them training and support in order to meet current standards. If they refuse then you can enter in to performance management potentially.
DM me if you would like specific info or to chat.

Comments

Noted on language ChloeWright. If he/she could do the job as required today, age would not be an issue.
There is no JD, as such, just a very old contract, that has never been revised. There's a move to get a new contract, conforming to NALC guidelines in place, but the Clerk isn't engaged, which means that the Council is prevented from functioning effectively. From what you've said, this seems to be the right approach. However, again from what you say, there's no argument regarding underperformance because there is no JD. Is that correct? Worth noting that training and support have been offered but rejected by the Clerk as unnecessary, I think - in part - because currently, training would be online, and that would be an issue.
There's a lot of resistance to change, which wasn't addressed when it needed to be in the past.

Perhaps the best option then is redundancy, because the role as currently performed is redundant. The Council needs somebody who has the skills to do the work efficiently, or the Council can't be offering value for money.

Thank you.

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