21/06/2019

When disciplinary issues arise concerning council Chief Executives or other statutory officers, it is clearly essential that the allegations are promptly investigated through the correct channels.

It was concerning therefore when the Joint Negotiating Committee wrote last month to Chief Executives, Monitoring Officers and HR Directors warning that there had been instances recently of councils “not having the appropriate structures and standing committees in place in order that potential disciplinary issues can be quickly considered.”

New regulations were introduced in 2015, but the Terms and Conditions of Service Handbook for Chief Executives and Chief Officers took longer to update. As senior disciplinary issues are (thankfully) relatively rare, many will not have had to implement them in practice.

However, this does not change the fact that councils are statutorily bound to follow the regulations – and this means putting the necessary committees and mechanisms in place because now the Head of Paid Service, Chief Finance Officer or Monitoring Officer (Statutory Officers) cannot be dismissed without the report of an Independent Persons Panel at full Council.

So, what are the requirements under the new disciplinary process?

The key components that councils need are a standing Investigation and Disciplinary Committee (IDC), an Independent Persons Panel, and an Appeals Committee. The IDC will often be the council’s Employment Committee (or similar) or a Panel or Sub-Committee drawn from such a committee since discipline and capability are non-executive functions.

If the allegations pass an initial threshold – not trivial, vexatious or better dealt with through some other process - then the new process runs as follows:

  • The allegations are considered by the IDC which decides whether a full investigation should take place
  • The IDC appoints an independent investigator, usually taken from a list held by the National Joint Secretaries
  • The independent investigator will investigate and report back to the IDC
  • The IDC will hold a hearing and determine whether: there will be a recommendation to the council to dismiss the Statutory Officer; or there is no case to answer; or there should be action short of dismissal
  • If the recommendation is for dismissal, this must be considered by the Independent Panel
  • The Independent Panel will review the recommendation and compile a recommendation of its own
  • Both reports/recommendations go before full council to make their final decision
  • Where the disciplinary action proposed falls short of dismissal, the council must also have an Appeals Committee to make a final decision. 

Implications to consider
Councils without the above committees and panels in place need to rectify the position as quickly as possible.

Councils’ constitutions will also need to be amended to reflect the new regulations. If they are only amended at the time of an issue arising, it will mean an unwelcome and frustrating delay for all. Carrying out a ‘health check’ of the Constitution is advisable in order to head such problems off before they arise.

Aside from ensuring the right committees have been created, we recommend that councils focus on a number of key requirements:

  • Identify suitable independent persons who can sit on the Independent Panel appointed under section 28(7) Localism Act 2011 (the same Independent Persons who deal with member conduct)
  • Provide training for the independent persons and members of the IDC – walk through the new process, ensure that everyone understands the level of care required, consider theoretical scenarios and decision points
  • Think about communications including the likelihood of a disciplinary case becoming public. How will you handle crisis communications, including the media, social media, etc?
  • Understand the timeframes that are likely to be involved and the costs that are likely to be incurred and ensure the system can operate as swiftly and effectively as possible

It is never welcome news when a serious disciplinary allegation arises against a Chief Executive or other statutory officer. If councils aren’t prepared for them with the right structures in place, a bad situation will be made worse. Delays with the individual on full pay could lead to allegations of wasting public money. Delays are also hard on the individuals themselves. It is in everyone’s interests to be able to investigate swiftly, following due process.

 

Articles issued within The MJ, replicated with consent