Becoming sensitive towards employment law considerations
Charities are often founded on compassion, social justice and a genuine desire to improve people’s lives, but these values do not protect a charity from workplace conflict, employment claims or disputes involving trade unions.
In fact, some of the characteristics that make the charity sector so distinctive can also create complex people-management challenges, as employees may feel deeply connected to the charity’s purpose, and relationships with colleagues and beneficiaries can become highly personal. Also managers may be reluctant to establish firm boundaries or initiate formal procedures because they fear appearing unsympathetic or acting against the charity’s values.
However, charities are employers and are subject to the same employment obligations as commercial organisations, which means they must issue appropriate employment contracts, calculate wages and holiday pay correctly, respond properly to grievances and follow fair processes when managing conduct, capability, absence, probation and dismissal.
Weak employment practices
Good intentions cannot compensate for weak employment practices and, when the appropriate foundations are not in place, even a relatively straightforward workplace concern can develop into a significant employee relations issue.
There has been an increase in the number and complexity of disputes being brought forward by employees over the past 18 months.
Cases can involve a broad range of issues, including unfair dismissal, discrimination, unlawful deductions from wages, whistleblowing, breach of contract and holiday pay, with employees often raising several connected allegations rather than pursuing one isolated complaint.
Although official employment tribunal statistics are not routinely categorised according to whether the employer is a registered charity, there is no reason to believe the sector is insulated from the wider increase in formal workplace disputes.
Greater access to legal information, the abolition of employment tribunal fees and employees’ growing awareness of their rights have all changed the environment in which charities operate. Employees can now research employment law through social media, online forums, trade union resources and artificial intelligence tools, and although greater awareness of workplace rights is positive, the information available is not always complete, accurate or applicable to an individual’s circumstances.
In practice, this means employees may arrive at meetings with firm expectations about their legal position, while employers must be prepared to explain and evidence both the process they have followed and the reasoning behind their decisions.
Certainly, employees are increasingly informed, confident in challenging management decisions and prepared to use formal processes when they believe they have been treated unfairly, making robust and consistent HR practice more important than ever.
Greater awareness changing disputes
Historically, employees may have had limited understanding of the employment tribunal process or believed that pursuing a claim would be prohibitively expensive.
Employment tribunal fees were introduced in 2013 but abolished following a Supreme Court ruling in 2017. Employees do not now generally have to pay a fee to lodge a tribunal claim, removing one of the practical barriers that may previously have discouraged some cases.
Before submitting most types of employment tribunal claim, an employee must usually notify Acas and be offered early conciliation, which provides an opportunity for the parties to explore whether an agreement can be reached without proceeding to a formal hearing.
Early conciliation can be extremely valuable because it allows both sides to consider the strengths and weaknesses of their respective positions and assess the commercial, financial and practical implications of continuing the dispute.
However, Acas does not decide which party is right or wrong, and reaching an agreement does not necessarily indicate that an employer has acted unlawfully, just as declining to settle does not guarantee that the employer will successfully defend the claim.
An employer may take advice from an HR professional or employment solicitor, while the employee may be supported by a solicitor, trade union representative or another adviser, but by the time an Acas notification has been submitted and professional representatives are involved, the working relationship may already have broken down.
Significant management time may also have been spent responding to correspondence, collating records and reviewing decisions made months earlier, which is why the best defence against an employment claim is rarely something created after the dispute has arisen. It is the quality of the employer’s contracts, policies, management practices, documentation and decision making throughout the employment relationship which count.
Charities can be particularly vulnerable
Charities frequently attract people who are strongly motivated by equality, social justice, human rights and community advocacy, and while those values can create committed and compassionate teams, they may also influence how employees interpret workplace decisions.
An employee who is accustomed to advocating for others may be more confident about challenging a decision they consider unfair, while a disagreement concerning conduct, organisational policy or a management instruction may be regarded as a matter of personal principle rather than a conventional employee relations issue.
This can become especially difficult when an employee’s personal campaigning or political expression overlaps with their professional role.
There may be situations where an employee has displayed imagery expressing a political viewpoint during online meetings. While employees are entitled to hold and express personal views, employers may have legitimate reasons for asking that such imagery is not displayed where it could reasonably be perceived as representing the charity’s position.
Remaining politically independent
For charities in particular, the Charity Commission expects them to remain politically independent and not be used to promote or endorse a particular political viewpoint. HR’s role is to help employers balance an individual’s right to express personal views with the charity’s legal and regulatory obligations, while ensuring any workplace decisions remain fair, proportionate and based on legitimate business considerations.
For charities, there is an additional consideration because trustees have a duty to ensure the organisation remains politically independent.
HR’s role is to help employers navigate these situations fairly, balancing an individual’s right to hold personal views with the charity’s obligation to maintain public confidence and comply with its legal and regulatory responsibilities.
These cases require a careful and evidence-based approach, with the employer considering the wording and scope of its policies, the nature of the employee’s role, the audience and status of the social media account, its connection with the charity and whether the management instruction was lawful, proportionate and consistently applied.
Clearly documented reasoning
Managers must also ensure that the reasoning behind any subsequent employment decision is clearly documented and is not connected to the employee having expressed a protected belief, raised a concern or challenged an instruction.
Probation is an important management tool, but it is not an employment law exemption. An employee may not have the qualifying service required to bring an ordinary unfair dismissal claim, but they can still pursue claims including discrimination, whistleblowing detriment and certain automatically unfair dismissals.
A probation dismissal may be relatively straightforward when it is supported by clear evidence and a fair process, but it becomes significantly more difficult to defend when concerns have not been recorded, expectations have not been communicated or other sensitive issues have become entangled with the decision.
This is why probationary concerns should be addressed promptly, reviews should take place as agreed and employees should be given a reasonable opportunity to understand and respond to any concerns before a final decision is made.
Not crossing professional boundaries
Another common challenge in the charity sector arises when an employee’s commitment to a beneficiary or service user leads them to operate outside agreed procedures.
Employees may form close and trusted relationships with the people they support and, in many cases, those relationships are central to delivering an effective and compassionate service. However, professional boundaries remain essential because, without them, both the employee and the charity may be exposed to safeguarding, confidentiality, wellbeing and operational risks.
There are times when a charity employee continues to communicate directly with clients outside agreed working arrangements, including during periods when they are not expected to be working.
Situations like this can be complex because an employee may genuinely believe they are acting in the client’s best interests or providing continuity of support. However, charity employers also have legitimate responsibilities to manage workloads, protect employee wellbeing, maintain appropriate oversight of client relationships and ensure important information is shared with the wider team.
Where concerns arise, employers should consider the circumstances carefully and respond in a way that is fair and proportionate. The focus should be on understanding what happened, the impact on the charity and whether expected working practices have been followed, rather than making assumptions about the individual’s intentions.
Allowing blurring of boundaries
This final consideration can be especially important because charity employers may struggle to enforce boundaries that managers have knowingly allowed to remain blurred. If employees have routinely responded outside working hours, used personal communication channels or handled cases without appropriate oversight, it may be unreasonable to treat one incident as serious misconduct without first considering the wider working culture.
Senior charity leaders must therefore create clarity before difficulties arise, ensuring employees understand when and how they may contact clients, what information must be recorded, who must be kept informed and how out-of-hours communication should be managed.
Charity leaders sometimes hesitate to address these matters formally because the employee is committed, the team is close or the charity wishes to preserve a compassionate culture, but compassion and accountability are not competing values.
A responsible charity employer can recognise an employee’s positive intentions while still addressing conduct that has created unacceptable risk, as allowing professional boundaries to remain unclear can ultimately be damaging to the employee, their colleagues, the beneficiary and the charity.
