If the council receives a staff grievance against the council as employer councillors therefore to be considered biased

Question

The parish council has a grievance against it as employer.  It has been informed that as such all councillors are to be considered biased and the grievance process needs to run without councillor oversight or input.

This also precludes the personnell committee from carrying out its duties as laid down in its terms of reference.

I see no guidance in ACAS or NALC documentation that would support the assumption that all councillors are biased and hence no councillors can see the grievance and determine, on the facts of the matter, which councillors may be biased.

Is it correct that, where a grievance is made against the council as employer, all Councillors are to be considered biased?

Answer 1

Because of the personal nature of any grievance (especially employment) a parish council should have well defined policies on complaints procedures and a well defined committee procedure ( and delegation of powers to deal with) specifically for employment. Such an employment committee can then proceed with dealing with complaints and only then report their findings back to the council for ratification. By doing this negates the prejudice point you state. Though an assumption of prejudice is not relevant if not proven and delegating a committee to process the matter helps remove such charges of prejudice just because one is a member of the council.  There will of course be a point when unresolved matters will require expensive professional intervention so your committee should be fully versed and trained in employment do's and don'ts.

Answer 2

It is unusual for a grievance to be aimed at the whole council, rather than one or more named individuals, or perhaps a committee. Is there a reason for this? If you have adopted the model grievance policy, have you explored the informal procedure?

Comments

The council was advised that, as the grievance was against the council as employer, no councillor could be involved in the grievance process.  Hence the personnell committee was put to one side and the council advised that an independent party investigate the grievance.  The process being overseen by the clerk and the independent party.  Hence the council, not having any knowledge of the grievance (due to confidentiality) are not in a position to determine why it is against the council as a whole.  The guidance refers to a grievance process in the employee handbook, which is a precis of ACAS requirements,  but it does not have a separate procedure such as the NALC procedure to follow.  The council has a personnell committee with delegated powers to deal with such issues, but as noted the advice given to council was that, as it was a grievance against the council as a whole, that committee would not be involved, and this stance was supported by the chair of that committee, who refused to call a meeting of the committee.  The initial guidance was questioned, and the council was informed that the informal process was followed, but as no councillor was aware of the issue, one can only conclude that the informal process did not include the council or the personnell committee.  Hence, my opinion that the initial guidance was flawed and that set the council off on the wrong track (the correct track being that the personnell committee formed to consider the issue with the NALC guidance in their hand and move it on from there).

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...so your Clerk is acting on behalf of the council in a legal process, without the involvement of any member of the council. The legal power to do so comes from...? Who issued the original advice? Is it the intention to complete this process without the council ever finding out what it was accused of and whether or not it was found guilty?

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That was the initial advice, and we were not told of the source nor has the council seen it in writing.  The initial investigation progressed without the involvement of the council (the full council voted on the financial decision and that it would allow a third party to carry out the initial investigation, without council involvement - that decision being based on the guidance that no councilor could be involved.  Yes - the intention is that the process will be complete without the council as a whole ever finding out as to what it was accused of.  It has been informed that individual councillors may be informed of actions they should take and other actions may be communicated to council.  However it is surreal that the council will not know what it was accused or, and therefore cannot take appropriate action to prevent recurrence.  I disagree with this approach, but the key issue is  - was the initial advice wrong, and it seems it was.  From that advice things have not progressed so well and in my opinion the council has laid itself open to accusations of mismanagement, not following due process (NALC Guidance) and not following its own internal procedures (personnell committee TOR).

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So the council and/or individual members will not be given an opportunity to offer any defence, but will be told what actions they need to take as a result of the process. If this case escalates to an employment tribunal, you won't have a leg to stand on.

For what it's worth, I'm currently involved in an employment tribunal on constructive dismissal of a former clerk, including issues relating to how her grievances were handled. The council and individual councillors are named in the case. Current and former councillors are providing evidence in their defence and the council as a whole is working with the insurance company's specialist solicitor in defending the case.

In my opinion, the advice you have been given is contrary to the basic principles of the law. The council should not have accepted the advice without knowing its source or seeing the full documentation. Your clerk appears to be acting as the council in this matter, which is not permissible. You haven't mentioned the identity of the independent third party, but are they suitably qualified to undertake this process? Was their appointment carried out in accordance with your financial regulations? The whole scenario seems to be an absolute mess and you may have gone too far down this road to turn things around. I wish you luck!

My local town council was hit with a punitive fine by an employment tribunal for failing to follow its own policies and procedures in dealing with a grievance, even though the tribunal case was dismissed.

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Thanks.  There was a large kerfuffle following the release of the (unseen) guidance and to an extent from there on.  Such that  2 councillors formally requested a meeting of the personnell committee (as per council procedures) in order to follow the committee TOR. That was timed out and then kicked into the long grass of the district council, where it remains without reply.  I fully expect the issue to go to a tribunal, which a least brings it into the public domain.  But, as you note, the council will not have a leg to stand on as it has not followed due process to date.  I remain hopefull that the council will regain control of the issue post appeal.  Thank you for your advice.   ps, the council does not have a written procedure to take a grievance beyond appeal, but I think that the ACAS guidance is fine and no doubt appropriate legal guidance, direct to council and written, will be the order of the day.