Council News
March 2016
Is a Council Liable for the Unacceptable Conduct of Elected Members towards its Employees?
A common concern for Parish Councils is unacceptable conduct by Elected Members towards staff. Quite often the target of such behaviour is the Clerk, however, they are by no means the only recipients.
Other Members of the Council, whilst disapproving and unhappy with such behaviour, often find themselves limited in what they can do.
At a Local Government level, the Monitoring Officer is available at District to deal with conduct issues, however, they are limited in what sanctions they can impose.
From an Employment Law perspective, if the subject of abuse has been employed by the Council for two or more years, they could claim Constructive Dismissal against the Council, as a result of the unacceptable conduct they have been subjected to.
If the abuse makes reference to one or more of the protected characteristics within the Equality Act 2010, such as age, gender, ethnicity, sexual orientation, the Employee can take a claim of harassment against the Council to an Employment Tribunal, regardless of their length of service.
However, many Council Employees who are subject to abusive conduct rarely stay in a job for up to two years, preferring to move on rather than suffer such behaviour. In addition, abuse rarely ventures into issues to do with gender, race or disability. In our experience it is mostly outspoken criticism of the Employee’s work. This is commonly done in public, such as Council meetings, and is described by the recipient as ridiculing, humiliating, demeaning and a serious cause of stress.
It is not uncommon to find that under such circumstances, Employees suffer long periods of stress and ill health, which not only affects their ability to work, but all other aspects of their life.
However, a recent Supreme Court decision (Mohamed v WM Morison [2016] SC)should sound a warning bell to Councils, that they are responsible for the conduct of abusive Councillors who are acting in a ‘representative capacity’ within the Council.
Councils can be held liable for claims of assault, personal injury caused work related stress/depression and professional deformation of character, which result from the unacceptable conduct of Elected Members. The case in question related to a supermarket Employee who abused and assaulted a customer, and has provided a benchmark to all organisations as to the limits of their vicarious liability.
The Court decided that if an individual is acting in a ‘representative’ manner for the organisation when they carry out their assault/abuse, then their actions are clearly connected to their role within that organisation.
In the case of an Elected Member who criticises a member of staff in public session, and does so in an abusive and offensive manner, that Councillor could be considered to have been acting in their role as a representative of the Council. As the managing body of the Employee, the Council would be vicariously liable for any legal action that resulted.
The Council could try to mitigate its liability by censuring the Elected Member. This can involve removal from Committees, and requiring communication from the problem Councillor to go through the Chair, rather than directly to the Employee. However, as Morisons found in the above case, even after they dismissed their abusive Employee, they were still liable in Court for his actions.
Ideally Councils should have their own conduct protocols which set out guidelines of acceptable conduct, as well as penalties, which Members should sign up to and adhere to.
PROFILE
Christopher Moses is Managing Director of Personnel Advice & Solutions Ltd and a Fellow of the Chartered Institute of Personnel and Development. If you have any questions regarding these issues please feel free to contact him on (01529) 305056 or email
While every care has been taken in compiling these notes, Personnel Advice and Solutions Ltd cannot be held responsible for any errors or omissions. These notes are intended to provide general information. Guidance for specific legal problems should be sought separately.
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