Employment in Churches can be a complicated topic, so we asked James Moss, Managing Partner of Slate Legal, to break down the essential employment policies and procedures in Great Britain for us.
Employment in Churches can be a complicated topic, so we asked James Moss, Managing Partner of Slate Legal, to break down the essential employment policies and procedures in Great Britain for us.
There are certain employment policies that I would deem essential for all employers based in Great Britain, including churches, regardless of the number of employees - I have deliberately limited my comments to GB only, because employment law is slightly different in Northern Ireland compared to the rest of the UK due to Northern Ireland-specific legislation and the devolution of employment law powers to the Northern Ireland Assembly. These policies are essential because they are either required by law or without them the employer would be deprived of a potential defence or really be on a back foot when defending claims arising due to the conduct of their staff. The essential policies and procedures are:
1. Equal Opportunities Policy
2. Anti-Harassment & Bullying Policy
3. Disciplinary Procedure
4. Disciplinary Rules
5. Grievance Procedure
6. Health & Safety Policy
7. Anti-Corruption & Bribery Policy
8. Data Protection Policy
9. Data Retention Policy
Employers are usually liable for the discriminatory acts of their employees acting in the course of their employment e.g. where one employee subjects a work colleague to sexual harassment. Employees have protection from unlawful discrimination/harassment regardless of their length of service. It is possible for an employer to avoid such liability by proving that it took such steps as were ‘reasonably practicable’ to prevent the discrimination occurring (known as ‘the statutory defence’ to a discrimination claim). However, without an Equal Opportunities Policy, an Anti-Harassment and Bullying Policy and appropriate training, such a defence will be extremely difficult to run successfully.
Employers also have a duty to give employees a written statement of the main terms and conditions of employment (sections 1 - 7B, Employment Rights Act 1996) which must contain disciplinary rules and the procedures for disciplinary decisions, appeals and grievances,or refer the employee to some other easily accessible document, such as a staff handbook, containing that information. Consequently, a Disciplinary Procedure and Rules as well as a Grievance Procedure are essential.
Employers with 5 or more employees are required to have a written record of their health and safety arrangements (section 5(2), Management of Health and Safety at Work Regulations 1999)– hence the need for a Health & Safety Policy. The need for and the terms of such a policy are intended to ensure that the employer has a clearly defined understanding of what it's health and safety responsibilities and goals should be. It is strongly recommended that smaller employers have such a written policy and carry out regular risk assessments and keep written records. Assessments should be carried out at least once a year, and preferably more frequently. If an incident were to occur, any church would want to be in a position to produce evidence that assessments had been carried out and appropriate precautions had been considered and taken.
In the UK, it is a criminal offence to offer, promise, give, request, or accept a bribe. Individuals found guilty can be punished by up to 10 years' imprisonment and/or a fine. If an organisation fails to prevent bribery it can face an unlimited fine, exclusion from tendering for public contracts, and substantial damage to its reputation. An Anti-Corruption & Bribery Policy provides guidance to all persons working for a church on their respective obligations and potential liabilities under the Bribery Act 2010. It may also assist a church in meeting the ‘adequate procedures defence’ to a bribery offence committed by anyone performing services for or on behalf of the church – which would include employees as well as contractors, agents and volunteers.
Churches need to consider whether they have a Bribery Act compliant selection process for appointing contractors or when selling property or sending funds to other churches/ organisations/ missionaries abroad. For example, does the church have to obtain more than one quote, or simply appoint a contractor known to the church? When selling, must the church sell to the highest bidder, or to someone known to the church? Does the church appoint the contractor or sell to the purchaser who has offered a substantial donation to the church? Does the church adequately monitor the use of funds sent abroad and how sure is it that such funds will be used for the purpose for which they were intended, rather than what could be deemed to be bribery? Although an Anti-Corruption & Bribery policy for a church would look a lot less detailed than what would be expected of, for example, a UK financial institution, it would nevertheless be prudent to ensure that the policy adopted enables the church to demonstrate that it has put in place ‘adequate procedures’ to prevent bribery, which would usually include covering the above issues in general terms.
The Data Protection Act 2018 sets out the framework for data protection law in the UK and all employers must comply with it. In addition, the EU General Data Protection Regulation (‘EU GDPR’) continues to apply post-Brexit because it was directly incorporated into UK law by the European Union (Withdrawal) Act 2018 on 31 December 2020 and is now known as the UK GDPR. In extreme cases, breaches of the UK GDPR could cost organisations up to £17.5 million or 4% of annual global turnover, whichever is higher. Having a Data Protection Policy and Data Retention Policy is therefore essential to help churches set out how they protect personal data and the principles, rules and guidelines that inform how they will ensure ongoing compliance with data protection laws.
It is prudent for churches in GB to take prompt action to put in place and adhere to the above 9 essential policies as doing so will not only help ensure that all staff are treated fairly and consistently but will also help to limit the risk of any successful Employment Tribunal claims.
It is also very important to have a decent employment contract template, covering all the key terms and conditions of employment –setting out the rights and obligations of the employer and the employee. Using the template as a basis for staff contracts, it can, where necessary, be tailored to the employee concerned: for example, the contract of a pastor will be different in certain respects to that of a church cleaner who does not have any teaching responsibilities. It is important to get the contract right first time as once agreed, if an employer wishes to make any changes the employee’s consent will be required in order for the changes to be legally valid. Employers are required to provide an employment contract to employees on or before the date on which their employment starts - ideally, it should be provided well before the start date (previously, employers had to provide this within 2 months of starting, but the law on this changed from 6 April 2020).
Whilst it can be useful and, in some instances, necessary, to cross-refer within the employment contract to relevant policies and procedures in the Staff Handbook, if an employer wishes to retain the flexibility to amend it's policies and procedures without first having to obtain employee consent to such changes, it is important to make it clear in the contract that all such policies and procedures do not form part of that contract and may be amended by the employer at any time. Any such amendments should of course be communicated to the staff.
I would advise against copying an employment policy/procedure/contract from the internet. This is not only highly risky, but is also likely to be a false economy. No two businesses/organisations are identical and so using a contract drafted for another business/organisation, without carefully checking that it is appropriate for your church, can cause real problems. Further, it is often difficult to know who created the document, whether it was intended to be used in a legal jurisdiction other than Great Britain and, if prior permission has not been obtained, any copying is likely to be in breach of copyright which could result in legal action.
Best practice would be to review them at least annually. In the podcast, I mentioned a very recent case from the Employment Appeal Tribunal (‘EAT’) which was published on 4 February 2021. The name of that case is Allay (UK) Ltd v Gehlen and here’s a link to the judgment: http://bit.ly/3jmnhdJ. In that case the EAT held that an Employment Tribunal was entitled to reject an employer’s ‘reasonable steps’ defence to a claim of racial harassment. Although the harasser and 3 other employees who were aware of the harassment (including 2 managers who had failed to report matters to Human Resources) had received equality and diversity training around 2 years earlier, the EAT found that it had become ‘stale’ and ineffective, and that it would have been a further reasonable step for the employer to give refresher training. So this is a further reminder that employers are going to need to review the training that their staff have received and decide whether it has become ‘stale’ and ineffective and if so, provide refresher training. Slate Legal can help with any such refresher training your church may need. Feel free to contact us to discuss your requirements.
Top tip: Churches should follow good practice and put all their employment-related policies into a user-friendly 'Staff Handbook' and make that readily available to their staff (ideally on an intranet/shared drive or by making a hard copy available in the church office), drawing it to the attention of new recruits during their induction process, dealing with any queries and identifying any staff training needs in relation to such policies and procedures.
Slate Legal can help churches put in place the essential policies and procedures and appropriate employment contracts. We frequently conduct audits of our clients’ existing employment-related policies, procedures and employment contracts. Any church interested in this service would simply need to email these documents to me quoting discount code #TCOSlateLegal0221. After a quick review I will aim to respond promptly, providing a discounted fixed fee for reviewing and updating them. In some cases, where a policy/procedure/contract is seriously defective or out of date, it may be possible to simply swap it for our template, resulting in a time-saving and thus a lower fixed fee than would otherwise be the case if we needed to amend and tailor all of the existing policies/procedures/contracts. We are usually able to provide the updated/revised documents within 10 working days of receipt of payment of the agreed fee.
Click here to read the full summary of Employment Policies and Procedures for Churches by James and find answers to more legal questions. We also have a podcast episode and a video interview with James that covers the same content as the full summary of Employment Policies and Procedures for GB Churches.
