Charity Trustees - The Challenges of Managing Allegations Against Senior Staff

From time to time, a grievance or allegation might be raised on connection with the conduct of the Charity's Chief Executive or another senior employee.

This can be challenging to navigate and can place a strain on relationships between the trustees and the executive.  Trustees should respond fairly, transparently and in a timely manner in order to the protect the interests of the charity, safeguard the welfare of all concerned and comply with regulatory requirements.

The Immediate Response

It is important to respond sensitively when a grievance is raised or an allegation is made about a senior employee within the charity. Depending on the nature of the complaint it may be appropriate to try to facilitate an informal resolution before matters escalate. However, if the issues involved are serious, a formal response will be appropriate.

The person who has raised the issue should feel heard and confident that their concerns will be properly investigated. The person against whom the allegation has been made should feel confident that the complaint will be investigated in a fair and impartial manner and that reasonable steps will be taken to preserve confidentiality and minimise potential damage to reputation whilst matters are under investigation. Support and assistance should be offered to both parties in terms of managing the impact of the process on their wellbeing.

All parties should be clear on what procedure is to be followed and what the next steps will be. The charity's disciplinary or grievance procedures may set out the process for investigating complaints against senior staff, in which case this should be followed. If the procedures do not provide a specific process for addressing complaints against members of the executive team, the trustees will need to follow the ACAS code of practice as a minimum and communicate how it is intended that the complaint will be investigated, by whom, and in what timeframe in order to manage expectations and avoid unhelpful speculation.

Care must be taken to avoid giving premature assurances about the outcome of the procedure. Vague reassurances, whilst potentially comforting in the moment, could undermine a fair process, or damage trust and confidence if they turn out not to be true.

Trustees will also need to be mindful of whether the allegation could amount to a serious incident for the purposes of reporting to the Charity Commission.

Working Arrangements

Depending on the nature and severity of the complaint, you may need to consider suspending the senior employee. This should be a last resort. Suspension should not be an automatic response to a complaint and only considered in the most serious of cases. For example, suspension may be appropriate in response to a serious safeguarding and discrimination concern, or if there are concerns about the employee intimidating potentially witnesses to be interviewed as part of the investigation. Any period of suspension should be as short as possible and the decision to suspend should be kept under review. Depending on the circumstances, you may prefer to consider a period of agreed leave with the individual as an alternative to suspension as a means of minimising the potential stigma that can be attributed to suspension.  

There are particular sensitivities to consider where a senior employee is suddenly absent. This can lead to gossip and speculation. You will need to consider how to communicate with other staff within the charity to explain the absence and temporary working arrangements. Generally speaking, it can be sensible to agree wording with the employee, so that they know and consent to what information will be shared with colleagues and externally.

You will also need to ensure appropriate pastoral support is provided to the employee during their absence. A helpful approach can be to appoint a trustee or colleague who is not otherwise involved in the process and make them available to provide confidential support. This person can offer regular check-ins with the employee and the employee should also be invited to share any ideas they might have about other pastoral support they feel would be helpful.

As suspension must only be considered as a last resort, the senior postholder will usually remain in post during the investigation. You will need to consider temporary working arrangements if there are concerns about the duties it is appropriate for the senior employee to perform, or the people it is appropriate for them to have professional contact with. You might consider home-working or special projects to limit the potential for difficult interactions or further allegations.

A Fair Process

When allegations are made against senior managers within a charity, it is important to be clear on the personnel that will be responsible for each stage of a formal process. You will need to appoint an investigator, and reserve suitable, unconflicted, individuals to act as decision makers and to hear any appeal. You will need to give early consideration to who it is appropriate to appoint at each stage. Where a complaint is made against a senior executive, it is important that the decision makers are more senior and therefore this responsibility will generally fall to a trustee, particularly where the complaint involves the Chief Executive. It is sensible to decide who would sit on the appeal panel, and work backwards from there.

It is also possible to outsource elements of the process if you have a small board of trustees, there are concerns regarding conflicts of interest or if it is felt that there is insufficient skill, experience or availability within the board members. For example, the charity may prefer to appoint an external HR consultant to act as the investigator to maintain impartiality. This can often be helpful in preserving a good working relationship with the senior employee and invaluable in demonstrating to the complainant that the process is independent and without bias. Care should be exercised in ensuring that any external consultant appointed to assist with the process has the necessary skills and experience to identify the issues, conduct a thorough investigation and prepare well considered findings for consideration by the decision maker.

Resolution

If the outcome of the investigation and any formal hearing is that the complaint is upheld in full or in part but that the senior postholder should remain in post, consideration will need to be given to whether a sanction short of dismissal should be issued such as a written warning or final written warning. Clear expectation of the standard of conduct expected of the senior individual should be set. Thought should also be given as to how the senior employee's professional relationships will work going forward. It may be necessary to reflect on lessons learned, to improve practices and/or to engage in a process such as mediation to rebuild any working relationships that have become strained as a consequence of the complaint. Mediation can be useful tool in overcoming workplace difficulties even where no fault has been found.

Another outcome may be that the senior employee or the complainant leaves the charity's employment during or following the procedure. This might be because the senior employee is dismissed following a serous complaint being substantiated, or because professional relationships have broken down to the extent that the charity and one or both of the parties to the complaint, mutually agree an exit.

In the case of an agreed exit, the charity may wish to enter into a settlement agreement with the senior manager. A settlement agreement can be used in order to mitigate the risk of an Employment Tribunal claim. However, it must not be used as a means of preventing the reporting of wrongdoing (for example in the context of serious incident reporting to the Charity Commission), or misleading future employers about what has happened (for example in the case of an inaccurate agreed reference). Trustees involved in negotiating a settlement agreement must be mindful of their duties in relation to the use of a charitable funds and the restrictions on making ex-gratia payments. A contemporaneous record should be made of the rationale for any payment made under a settlement agreement and how it is considered expedient in the interests of the charity.

Dealing with complaints against senior postholders can be stressful and time consuming for all involved. It can also cause significant disruption to the day to day operation of the charity. Mismanaging a complaint can have serious ramifications for the reputation of the charity and can quickly result in the breakdown of professional relationships. Taking time at the outset to plan your approach and to communicate effectively with those involved is essential to successfully navigating such challenges.

For advice on managing allegations against senior staff, please contact Jo Oliver in our Employment Law team on 0117 314 5361, or your usual contact in our Charities team. Alternatively, please complete the form below.