Agenda Item No. 6
The Vale of Glamorgan Council
Council: 26th June 2013
Report of the Managing Director
Review of Internal Employment Related Appeals Process
Purpose of the Report
1. To ask Members to consider and approve proposed changes to the process for considering employment related dismissal appeals and stage three grievance issues.
1. That Members consider and approve changes to the corporate appeals process for employee related conduct and capability dismissals and stage three grievance appeals for Council employed staff (excluding Chief Officers and schools employed staff) in line with the proposal set out in paragraphs 19 to 29 of this report and grant the specified delegated authorities.
2. That the changes referred to above take effect from 27th June 2013 except for the processing of appeals lodged before that date; such appeals to be dealt with in accordance with the transitional arrangements set out in paragraph 29.
3. That the necessary changes are made to the Council's constitution subject to approval of the proposal as set out in paragraphs 19 to 29 of this report.
4. That a wider review of the corporate grievance and disciplinary procedures is undertaken over the next 12 months in consultation with the trade unions and in accordance with the objectives as set out in paragraphs 39 and 40 of this report.
5. That the Group Leaders notify the Head of Democratic Services of their nominated members to comprise the pool of members in line with paragraph 22 of this report.
Reasons for the Recommendations
1. To improve the effectiveness of the current appeals process
2. To ensure clarity for those Appellants who have registered appeals prior to the 27th June 2013 and which have yet to be determined.
3. As 1 above
4. As 1 above
5. To establish the pool of members for the newly constituted Appeals Panel.
2. Members will be aware that employees have a right to appeal the outcome of a dismissal decision for reasons related to conduct, capability or redundancy.
3. Such a right is a legal right under current employment law and is accommodated by the Council in the following polices and procedures :-
· - Disciplinary Procedure
· - Capability Procedure
· - Management of Attendance
· - Avoiding Redundancy Procedure
4. For Council employed staff, including those on Chief Officer terms and conditions (but excluding the Head of Paid Service, Monitoring Officer and Section 151 Officer) dismissal appeals are currently determined by an Appeals Committee comprising six members (three of which are required for the Committee to be quorate).
5. The same Committee also considers stage three grievance appeals for all Council employed staff including those on Chief Officer terms and conditions (but excluding the Head of Paid Service, Monitoring Officer and Section 151 Officer).
6. Separate arrangements are in place in relation to the consideration of all dismissal and grievance issues for schools employed staff. Such matters are dealt with by the relevant Governing Body of the particular school in accordance with the law relating to the management of schools.
7. For Council staff (below the level of Chief Officer) the initial decision to dismiss for conduct or capability and consideration of second stage grievances is undertaken at Head of Service/Director level (prior to appeal to the Appeals Committee).
8. Confirmation of redundancy dismissals and related severance arrangements is undertaken by the Early Retirement/Redundancy Committee prior to any appeal to the Appeals Committee.
9. Separate dismissal and grievance appeals arrangements are in place for the Head of Paid Service, Section 151 Officer and the Monitoring Officer in accordance with existing legal and constitutional requirements.
Relevant Issues and Options
10. Experience over the last two years has suggested that the appeals process for Council employed staff would benefit from review in order to make the process more efficient and reduce the incidence of delays. This, in turn would reduce the uncertainty for employees, managers and the wider organisation.
11. Over the last two calendar years the Appeals Committee have been convened on twenty two occasions; nine times to consider dismissal appeals and thirteen times to consider final stage grievances.
12. For grievance appeals the average time between registering the final stage appeal and resolution was three and a half months. The average length of time between registering an appeal against dismissal and outcome was four and a half months. Such timescales are clearly too long and need to be shortened.
13. Members will clearly be aware of the importance of dealing with appeals as quickly as possible and the legal, service and relationship implications of delays. The ACAS code of practice which forms part of employment law guidance states that "Appeals need to be heard without unreasonable delay".
14. Dismissal appeals need to be heard as quickly as possible in order to protect the legal and future employment interests of employees and also to avoid any disruption to service provision. Delays in determining a dismissal appeal in circumstances where the appeal is ultimately successful can irredeemably undermine relationships and hinder the chances of successfully reinstating the employee.
15. The need to reduce delays is equally important in relation to finalising grievance issues. Delays in such circumstances can often serve to perpetuate the source of dispute, increase the potential for stress, sickness absence and poor performance and ultimately undermine service provision.
16. An employee's or employer's claim or defence in an Employment Tribunal can be potentially prejudiced by delayed appeals processes.
17. There are, of course a range of reasons for delays including the difficulties in arranging appropriate member representation at the Appeals Committee, the legal complexities associated with many appeals issues and the unavailability of the appellants/trade union representatives or witnesses.
18. On the basis of the above it is proposed that changes are made to the dismissal appeals process and final stage grievance process for Council staff (excluding those on Chief Officer and Chief Executive terms and conditions and schools employed staff) as set out at paragraphs 19 to 29 below.
Details of Proposed Change to the Appeals Process
19. In accordance with the above it is proposed that all appeals (as referred to in paragraph 18 of this report) should now be determined by a newly constituted panel consisting of the following:-
· One Elected Member drawn from a pool of three nominees
· The Managing Director or Service Director/Chief Learning and Skills Officer as nominated by the Managing Director and
· The Head of Human Resources or substitute as nominated by the Head of Human Resources.
20. Determination of appeals will be by majority decision of the three participants involved, with delegated authority granted to the Managing Director or Service Director/Chief Learning and Skills Officer as nominated by the Managing Director.
21. The panel would be responsible for hearing the appeal, where possible within six weeks of the appeals registration unless delayed for good reason. If there is a delay then the Appellant will be consulted and informed of the reasons for the delay (and revised time frame) as soon as possible.
22. The pool of three Members (from which one Member would be drawn) would be determined as a result of nominations from the Group Leaders from the three largest political parties. Such nominees will continue until the next Annual General Meeting unless changes are agreed in the interim by Council, and thereafter will be determined at each Annual Meeting.
23. The determination of the Elected Member for each Appeals Panel would be based on the availability of the members concerned, but considered initially in the order of the size of the political group.
24. The involvement of a Service Director/Chief Learning and Skills Officer as a substitute for the Managing Director (and as nominated by the Managing Director) would be in situations where the Managing Director is not available due to absence or work demands or where the appeal presents a conflict of interest for the postholder concerned.
25. The involvement of the Head of Human Resources (or named substitute) will help ensure that the HR issues are considered as an integral part of the appeals determination. A suggested protocol for the Panel is set out in Appendix 1.
26. The proposed changes will help to respond to the issues as set out in paragraphs 10 to 18 of this report. The changes will also address related concerns about the overly formal and legalistic nature of the current appeals process and the need to be able to hear appeals in an easier and less intimidating environment.
Exemptions and transitional arrangements
27. Members will note that the decision to confirm dismissal decisions in relation to redundancy issues is taken by the Early Retirement/Redundancy Committee with subsequent appeals to the Appeals Committee. On this basis it is recommended that the redundancy appeals are not included in the proposed changes.
28. The Appeals Committee would retain delegated responsibility for determining issues not covered in the scope of the above proposal. This would include appeal considerations for officers on Chief Officer or Chief Executive terms and conditions and all redundancy related dismissal appeals for Council employed staff.
29. It is also proposed that the Appeals Committee should continue to be convened to determine appeals covered within the scope of the above proposal but only where the registration of the appeal was before 27th June 2013. This will help ensure appropriate transitional arrangements for employees.
Consultation with the trade unions and alternative considerations
30. The proposal as set out in paragraphs 19 to 29 above has been developed in consultation with the trade unions over a number of months and following consideration of a number of alternative options.
31. One of the main alternatives to the proposal was the delegation of the appeals process solely to the Managing Director or one of the three Service Directors and Chief Learning & Skills Officer (as nominated by the Managing Director).
32. The above alternative option would also have addressed many of the concerns as set out in paragraphs 10 to 18 of this report (in terms of reducing delays and increasing the informality and accessibility of the process).
33. The option would not, however have carried the support of the trade unions who expressed strong concerns about the absence of Member involvement and the negative effect this may have on the perceived independence of the process.
34. The proposal, as recommended in this report is generally supported by the trade unions on the basis that it will help to ease the problem of delays without undermining the overall integrity and impartiality of the appeals process.
35. The unions are also supportive of the reduced formality of the process and the fact that the proposed change as outlined in this report will be part of a wider review of the disciplinary and grievance procedures over the next 12 months.
36. It is proposed that the changes to the appeals process as set out in paragraphs 19 to 29 above are considered by Council on the 26th June 2013 and, if approved implemented with effect from the day after.
37. The relevant references to the appeals process in the grievance, disciplinary, capability and managing attendance procedures will then be amended accordingly.
38. Affected employees will be made aware of the changes through the "core brief" process and publicity on the Council's Staffnet site.
39. It is also recommended that over the next 12 months all other parts of the disciplinary and grievance procedures are reviewed in full consultation with the recognised trade unions and in order to further improve effectiveness and efficiency.
40. This will include a review of timescales at all stages of the process, the use of dedicated resources for the investigation of disciplinary and grievance issues and the appropriateness of alternative approaches to dispute resolution.
Resource Implications (Financial and Employment)
41. The proposals within this report will help to improve the speed and cost of decision making in relation to dismissal and grievance issues, lead to a better use of Member, employee and officer resources and contribute to improved employee relations.
Sustainability and Climate Change Implications
42. None identified.
Legal Implications (to Include Human Rights Implications)
43. The Employment Rights Act 1996 as amended from time to time requires an employer to provide details of disciplinary and grievance arrangements. The right of appeal forms part of this information.
Crime and Disorder Implications
44. None identified.
Equal Opportunities Implications (to include Welsh Language issues)
45. None identified.
46. The review of appeals procedures will help support the delivery of service objectives as set out in the Corporate Plan 2013/17.
Policy Framework and Budget
47. The delegations within this report are a matter for determination by Council.
Consultation (including Ward Member Consultation)
48. Details of the consultation process with the trade unions are set out in paragraphs 30 to 35 of this report.
Relevant Scrutiny Committee
49. Corporate Resources.
Reuben Bergman, Head of Human Resources
Corporate Management Team
All Heads of Service
Sian Davies, Managing Director