Human resources: Tribunal tribulation

Simon Kerr-Davies

Charity employees and volunteers expect high ethics from their employers, with the result that charities face more than their fair share of tribunals.

Poor volunteer management came under scrutiny in parliamentary questions last year. But there were no meaningful replies. In a written answer on 10 February last year, the then trade and industry minister Gerry Sutcliffe told Conservative MP Stephen O'Brien that the Employment Tribunals Service does not keep statistics on particular types of claimant.

In other words, there is a dearth of statistical evidence about claims against charities. Anecdotally, however, it appears that charity employers are significantly more likely to suffer from tribunal claims than those in the private sector.

Why should this be? A number of factors make it more likely that a charity will be subject to employment claims, ranging from a lack of resources or HR experts to employees' greater awareness of their rights.

Public perceptions

Identifying and applying ethical values is of the utmost importance to many charities. The outside world often expects charities to be ethical bodies - a charity should not only have 'good' objectives, but it should also promote and achieve them in a 'good' way. But does this mean that charities are expected to be charitable to the people who work for them?

Ethical values are often implicit, if not championed, in a charity's internal literature. Many staff handbooks begin with a mission statement, and employment processes and procedures may provide for 'best practice', not just statutory compliance.

In a case that attracted a great deal of publicity recently, the Anthony Nolan Trust found itself having to address this issue. The trust, which campaigns on cancer issues, had refused to allow an employee time off to care for her teenage son, who was suffering from cancer. She brought a claim against the trust for refusing her request.

Although employees may have reasonable time off to deal with family emergencies, there is no legal right to take regular time off to care for a sick teenager.

On the face of it, then, the employee's claim lacked merit. Despite this, the trust faced public criticism for the perceived inconsistency between its public values and its HR practices.

Employee awareness

With rates of pay lower than in the commercial sector, employees might see the return for this as being the opportunity to work in a good environment, where the values of fairness and respect are paramount. Management decisions that would be seen as tough but fair in a commercial environment may not be seen in the same way in a charity context.

Many charities are advocates for change, and staff engaged in a campaigning environment will be more aware of rights than employees who aren't. Those used to challenging the status quo and questioning orthodoxy might be more willing to query their personal situation at work.

A sense of justice may well encourage employees to believe that issues should be pursued out of principle, especially when they consider their employers have not behaved consistently with their own values. They might genuinely believe that their employer would do the right thing, but the only way they can discover the truth is by going to tribunal.

Administrative resources

Although human values might be stronger in a charity, the resources available for administration and managing people may be sparser than they are in the private sector. Spending on administration, quite rightly, always needs to be justified to charity stakeholders.

In practice, expenditure on employee relations could be seen as an inappropriate use of resources and potentially damaging to funding prospects. In such an environment, management can easily become overstretched and HR practices and procedures can suffer as a result.

Red tape

A regulatory impact assessment on indirect sex discrimination prepared by the Department of Trade and Industry said compliance costs would be minimal. As far as charities were concerned, it would affect them only in respect of salaried staff because volunteers are not considered as 'workers' by European legislation. The RNLI might have a different view, following recent claims by its volunteers.

Procedure in employment law has become increasingly burdensome - a procedural error alone might lead directly to a claim. The Government's ChangeUp programme acknowledges that this is a key issue for charities - it is trying to create an infrastructure to support charities in dealing with compliance, including HR management issues.

Reputation issues

Employment law claims can be very damaging to charities. When seeking funding or taking on outsourced work from the public sector, charities are often required to provide details of employees, policies, practices and claims. Discrimination claims are particularly detrimental, even if the charity feels the claim was without merit.

These issues make settlement an attractive option. But charities are responsible for applying for funds for particular objectives, so paying money to a disgruntled employee might be difficult, even though the justification for doing so can be commercially irresistible.

There is clearly a dilemma for charities that seek to be ethical employers.

It is essential to demonstrate to the public, funders and stakeholders that they are keeping to publicly expressed values. Where the core values demand it, this might mean accepting that employees will receive treatment far beyond the legal minimum. But charities must always remember their primary obligation to apply funds in accordance with charitable purposes.

- Simon Kerr-Davies is an employment specialist in the charities team at Cripps Harries Hall LLP. He provides employment law advice to many charities, advising on policies and practices, discrimination law and tribunal cases.

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