Background & Overview

1. These Disciplinary & Grievance Polices are based on the ACAS Code of Practice on disciplinary and grievance procedures and the ACAS Disciplinary and grievance procedures.
2. Employers and employees should always seek to resolve disciplinary and grievance issues in the workplace. Where this is not possible, employers and employees should consider using an independent third party to help resolve the problem. The third party need not come from outside the organisation but could be an internal mediator, so long as they are not involved in the disciplinary or grievance issue. In some cases, an external mediator might be appropriate.
3. Many potential disciplinary or grievance issues can be resolved informally. A quiet word is often all that is required to resolve an issue. However, where an issue cannot be resolved informally then it may be pursued formally. The Code and these Policies set out the basic requirements of fairness with the intention to provide the standard of reasonable behaviour in most instances. Employees cannot now use the formal stages of a council’s grievance procedure if the complaint should be dealt with under the council’s Code of Conduct.
4. If the council cannot resolve the matter informally, which can include mediation, the complaint can only be dealt with by the employee submitting their complaint to the principal authority’s Monitoring Officer (BDC). The council has no power to deal with it. When an employee’s complaint is about a councillor’s conduct, grievance arrangements are restricted to the informal stage. However, the council, like any other employer, has an on-going duty to take reasonable care of its staff, which does not disappear if an employee makes a complaint to the Monitoring officer.
5. The employer’s duty of care requires that it takes all steps which are reasonably possible to ensure employees’ health, safety and wellbeing. The duty is wide-ranging and can arise throughout employment. For example: clearly defining jobs and undertaking risk assessments; ensuring a safe working environment; protection from bullying, harassment and discrimination, from colleagues or third parties; providing adequate training and feedback on performance.
6. An employer can be deemed to have breached the duty of care by failing to do everything that was reasonable in the circumstances to keep employees safe from harm. Employees also have responsibilities for their health and wellbeing at work; although employees must obey their employer’s lawful instructions, they can refuse to undertake work that is not safe, which includes work damaging to their health.

Councillor & Council Staff Roles & Responsibilities

7. Difficulties can arise because of misunderstandings by councillors of their roles and responsibilities and those of council staff. It is not councillors who employ council staff, it is the council. A councillor has no inherent authority to instruct staff in their duties. Individual councillors must not involve themselves in the day-to-day running of the council unless they have been delegated the authority to do so by the council.
8. Council functions can generally be delegated to staff either directly from the council. This enables staff to undertake the day-to-day running of the council. If a councillor has a concern about the actions of any member (including the clerk), it should not be raised directly with the staff member. It should be raised with the chair of the council.

Meetings

9. Meetings should be arranged as soon as possible but the employee should be given reasonable time to prepare. Proceedings should be minuted; if possible.
10. Employees have a statutory right to be accompanied (by a workplace colleague, or by a trade union representative or official) to a grievance, disciplinary or appeal meeting.
11. An employee does not have a statutory right to be accompanied to an investigatory meeting. However, the disciplinary process permits employees to be accompanied. In cases of poor performance, it may not be necessary to have an investigation. More information can be found in the ACAS booklet “Conducting Workplace Investigations”.
12. Disciplinary and grievance arrangements may be established by the Personnel Committee; the authority to decide a disciplinary matter, a grievance or an appeal, has been delegated to the Personnel Committee. This is confirmed in its terms of reference. Councillors (or the Clerk) with direct involvement in a disciplinary or grievance matter should not be appointed to a sub-committee or appeal panel.

The Disciplinary Investigation

13. In cases of misconduct, an investigation of the facts should be carried out as soon as possible. Other than for allegations of minor misconduct, an investigator should be appointed by the council’s staffing committee. The investigator’s role is to submit a report with recommendations to the staffing committee, which decides whether further action should be taken. An investigator must be independent, fair and objective, and should normally be a councillor. If this is not possible (e.g. because all the councillors have direct involvement in the matter), the staffing committee should appoint someone from outside the council.

Suspension

14. In certain situations, a council may decide that suspension with pay is necessary while the investigation is carried out. However, suspension will not be appropriate in every case. Suspension with pay should only be used as a last resort. It should be reviewed to ensure it is not continuing unnecessarily. It should also be made clear that the suspension is temporary, not an assumption of guilt and not a disciplinary sanction.
15. Mediation is a confidential dispute resolution process that requires the consent of the council and the employee. It may be appropriate at any stage of the disciplinary or grievance procedure, for example where there have been communication breakdowns or allegations of bullying and harassment. Mediators do not make judgements or determine outcomes. They ask questions that help uncover underlying problems, assist parties to understand the issues and clarify the options for resolving their difference or dispute.

Data Protection

16. Information about disciplinary or grievance matters should be restricted to those involved in the process. Any disciplinary action or grievance outcome should remain confidential. The employee’s disciplinary and grievance records should be held by a council in accordance with the General Data Protection Regulation (GDPR). Personal data may be contained in documents (such as letters, emails, employee statements and GP records) used in a grievance or disciplinary process. The GDPR requires that all personal data is used only for the purpose specified; sensitive personal data (such as GP records) is subject to stricter regulation.