Erratic behaviour of Clerk is undermining the operation of the Council..

Question

The Clerk at our Council, has since the start of their employment been very erratic in terms of works that is produced, behaviours and attitude to   any member who asks for information. This has become a problem for a small group of councillors who are now being treated in an aggressive way via email communication and at meetings. Although this has been reported to the Chair, there has been no redress and it continues. This has now resulted in the aforementioned councillors refraining from any form of communication and/or not attending meetings due to the positive discrimination being displayed. The situation has now become untenable and there is a desperate need to understand what if any steps can be taken.
(There is more detail but this cannot be shared publicly.)

I need advice on this one as I believe, myself and a number of my fellow members are no longer able to fulfil their responsibilities and commitment to the residents of the town.

Many thanks

Answer 1

Your council should have a disciplinary procedure which will explain the process for dealing with such matters. Action should be taken at the earliest opportunity, as these issues are unlikely to resolve themselves and attitudes become more entrenched with the passage of time. The failure of members to attend meetings may result in disqualification, so that is not an option. As in any dispute, evidence is required, so collect all relevant documentation.

As an aside, I have noticed that some clerks return from ALC training with an unnecessarily confrontational attitude to members of the council. It feels to me as though they are being brainwashed. Clerks must be able to enforce the rules and keep the council on the straight and narrow, but there are many ways to communicate that message.

Comments

Thank you DavetheClerk - on paper and if the handbook was being referenced I would agree with the above comment regarding disciplinary procedure. However, we do not have a procedure for such matters, add to this the fact that we do not have an appraisal process in place (due to the Chair to the Council avoiding finalising the process last year, plus automatically taken on the Chair of the HR committee and is acting as the 'line manager') We are well and truly in trouble from a HR perspective.. Where do we go from here.. can we look for support elsewhere? I've checked and understand this would not sit with the Monitoring Officer but is it something the Local Authority could help with? and as a small group of Councillors do we have the authority to seek advice without the agreement of all other Councillors... becoming seriously concerned!!

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Well, all is not lost, but you'll need to play the long game here.

If you're using the model contract of employment for your clerk, it includes a commitment to grievance and disciplinary procedures, so if you haven't adopted them, you're in breach of the legal requirement to issue a valid contract of employment to an employee. To rectify this, propose the adoption of the NALC model grievance policy and model disciplinary policy at your next meeting to enable the council to comply with its obligations under employment law. Members will have the choice between adopting the policies or making an informed decision to break the law, something that would render them personally liable for financial penalties. Once the policies have been adopted, use them for their intended purpose.

The appraisal of all employees is an important aspect of the management role, however it comes with a caveat. Only those who have been trained in the art of appraisal should be involved in the process. You may also wish to apply a requirement for all members of an HR committee to undergo training, as this could prevent costly errors. As always, your local association should be your first port of call for such matters, but the ACAS website has some really useful resources too.

Answer 2

The Chair is not the line manager of the clerk and is not empowered to unilaterally act on the issue. If your Council has a staffing committee, they should deal with the Clerk's behaviour.  Consideration should be given as to whether or not the Clerk is doing the job properly in respect of meeting the items listed in their job description..

Comments

Thanks Graeme-r - as they say 'Houston we have a problem.' We do have a HR Committee, however, this Committee has been hi-jacked by the Chair (unilaterally assumed this role) and they are currently undertaking regular reviews with another Councillor - incidentally they were not given this authority but assumed it.. However, there are no reports / updates coming out of these meetings and we are now completely in the dark but we the behaviour continues.. What can be done?

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Firstly all Cllrs who share your concern need to act collectively and consider raising appropriate motions at full council. The HR committee has no jurisdiction over a councillor and he/she should report this to the Principal Authority Monitoring officer and the external auditor- and refuse to participate any further. If covert HR meetings are taking place they cannot implement anything discussed without minuted resolutions being put before full council.  You have the right to attend these meetings and should ask to be given details of the location of the next one.  The meeting can't be deemed confidential to a councillor.

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One of the standing items on the agenda for the Annual Meeting should be to review the membership and terms of reference of all committees. If you're using the model standing orders, this will be in Section 5. This is your opportunity to exert control over the future workings of this committee, assuming you have sufficient support from other members of the council. At the very least, the duties and powers of the committee should be agreed as a written document, which should include the reporting arrangements.

Answer 3

Many councillors do not understand that the Clerk of a Parish Council is an employee and is there to advise only. The council as a whole decides on any actions to be taken. Added to that the Chair has no extra legal rights to make decisions on his own unless those decisions are part of his authority at meetings. So many Councillors believe that the Clerk and the Chair are the authority that they should listen too.
Councillors are legally responsible for any decisions made and if they let the Clerk and the Chair do something that is illegal then it is not the Clerk that will be in trouble but the Councillors. They are each and every one the Council and have the last word on any decisions made. Also, the Clerk should have his position reviewed annually by the Council.
Behaviour of the Clerk is to be governed by the Council and NOT the Chair. It should be put on the agenda and discussed at a meeting of the Council. No way should any Councillor have their authority removed by Clerk or Chair.
The Councillors can request the Chair calls an extraordinary  meeting for the problem to be discussed and reviewed. If the Chair refuses then five Councillors may call one.

Comments

Who has a duty of care to ensure that Councillors are not bullied by aggressive Clerks ?  I'm currently considering taking  private legal action against our Clerk, as fellow Councillors  wont say boo to a goose .

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Should that be two rather than five councillors?

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That's a loophole that nobody seems to want to address.

A bullish clerk can be (should be) held to account by the HR committee who are subordinate as a committee to the whole council.  If the HR committee is ineffective or has assumed a self imposed status beyond its authority then the council as a whole must take control of them.

There is also a degree of personal responsibility that should be assumed if someone feels they are being treated inappropriately.
How is the clerk bullying a councillor?  Is the councillor personally aware of what they are entitled / empowered to demand / expect from an employee?

If you have an appropriate question regarding council business put it, initially to the clerk.  If they can't / won't / don't respond raise it at a council meeting.  Even a councillor has recourse to the (tortuously long winded) FoI route and it would seem notably embarrassing for a council to have to be referred to the ICO for failure to make appropriate information available to councillors on request.  In fact, it would even be necessary to record it on the annual audit summary.

Can you give a generic example of what it is that is considered as bullying?

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Thank you for an interesting and informative reply .  A  few examples of what I consider are bullying behaviour are-
•Referring to me as a co-opted councillor when making a booking for training with the local Association of Local Councils. Whilst it’s factually correct I don’t believe my status was relevant.
•Referring to me by name to in emails, basically singling me out on everything I say or do which may be incorrect or anything which the clerk disagrees with. This doesn’t not happen with all other councillors.
•Using Cat C category heading when replying to mails. Cat C  ( If you don’t use this system ) is for info only and therefore no reply expected or wanted from the recipient .
•Threatening to raise complaint against me when Ive A. Requested sight of a letter b. Chased for answers. Incidentally the issue of the letter is still ongoing, I’ve sent FOI requests to the recipient.
•Unsolicited aggressive phone call - after I objected to the continuation of Emergency Powers & put forward for the agenda a suggestion to use Zoom,an email to all councillors then followed , basically implying I didn’t know what I was doing and listing the  qualifications / experience  of a   “ Proper Officer “.
I no longer accept phone calls and have explained that they are intrusive and not an effective use of anyone’s time.
I have complained personally to the clerk that I find the use of Cat C to be inappropriate under certain circumstances, the response  was sent with the full council on copy, I have yet to respond.

Answer 4

Hi there,
We have had an extremely similar situation to us.
Unfortunately many PC's do not operate in a professional manner that reflects being a formal tier of government. This is a huge problem that needs sorting from the very roots and not something which will be done over night.

The PC is an employer and like any other area of control they should have policies and practices surrounding employment. NALC and ACAS have good example of contracts, role profiles and policies etc. Your Clerk should have a probationary of at least 3 months which can be extended if you feel that the council need more time to reflect on the quality of work etc. However the Clerk as an employee should also have regular informal 1-2-1's with a line manager (Documented still) and regular (Monthly) appraisal meetings. Without these an employee should not simply pass probation.
Although probation is a 'best practice' approach the law actually allows for 2 years minus 1 day to remove an employee without the need for redundancy and if we're being super technical then without any reason at all (This is bad practice though). So long as the reason for removal is not based on discrimination i.e. age, sex or religion etc then the council cannot be taken to a tribunal and would not need to consider a 'pay off'.
If the Clerk is being obstructive and showing subordination then this must be tackled under performance management (Disciplinary procedure). Despite my advice with our Council regarding our former Clerk the Staffing Committee were lacking knowledge and strength to tackle the issues and simply let the Clerk sale through probation and past the 2 years without every addressing any issues. It was therefore no surprise then when as a council we finally found a back bone we had to contract Solicitors and pay the Clerk off despite there being no fault found against the council.
The situation should never#, ever have reached this point. If we'd have introduced and worked by the policies I suggested the Clerk would have been dismissed through gross misconduct and no pay off needed.