Director's responsibility in an RTM
Discussion
I'm a director of an RTM looking after a residential block.
We have a managing agent (MA) looking after the building day-to-day.
The MA employs (our) staff and re-bills us for them.
The MA notified us that one of our staff had been suspended while non-trivial issues were investigated.
The staff member denied the allegation but resigned before the investigation was finished.
The staff member was in a very trusted position.
These things happen, I guess, but it was unfortunate as their performance at work had previously been fine.
The issue is that there is an intent on the RTM board to re-employ the staff member directly, rather than through the MA.
This seems risky to me as should the staff member do something untoward in the future then the board would have to admit that they had re-employed them knowing that there were allegations outstanding.
We have the usual director's' insurance but I'm trying to understand whether we would be taking on any extra liability should we re-employ this person?
Thanks for any help.
We have a managing agent (MA) looking after the building day-to-day.
The MA employs (our) staff and re-bills us for them.
The MA notified us that one of our staff had been suspended while non-trivial issues were investigated.
The staff member denied the allegation but resigned before the investigation was finished.
The staff member was in a very trusted position.
These things happen, I guess, but it was unfortunate as their performance at work had previously been fine.
The issue is that there is an intent on the RTM board to re-employ the staff member directly, rather than through the MA.
This seems risky to me as should the staff member do something untoward in the future then the board would have to admit that they had re-employed them knowing that there were allegations outstanding.
We have the usual director's' insurance but I'm trying to understand whether we would be taking on any extra liability should we re-employ this person?
Thanks for any help.
Edited by nyt on Monday 20th March 08:10
LF5335 said:
Any chance you could be clearer on who was employed by who when and when resignations / suspensions etc occurred. I can’t work out definitively who was working for whom and when allegations surfaced etc.
It doesn’t t need to be specific dates just a bit clearer.
I'll try - I'm trying to be a little circumspect for obvious reasons.It doesn’t t need to be specific dates just a bit clearer.
The board are not aware of precise timing, but the incident(s) likely took place in January.
Our staff are currently employed by the MA and re-charged. This is fairly usual in residential property.
The staff member was therefore an employee of the MA at the time of the allegations - though permanently at our site and working only for us.
As I said, the staff member has since resigned and is unemployed
Because the staff member was their employee at the time of the alleged incidents took place, the MA are unable to give us details of the offences, other than to say that they were serious.
When you say "Our staff" do you mean dedicated allocation of employees of the MA?
Having been in a similar situation, but reversed roles, I would be extremely cautious about re-employing in these circumstances. Possibly making a mountain out of a molehill for a moment, how do you know the employee would be safe around vulnerable people, or money & contracts? Unless you know what the allegations or proven events are you can't assess or manage the risk, all you do know is the ex-employee has been suspended pending investigation and has chosen to resign rather than see it through. Both are non-trivial steps to take and if the employee had done nothing wrong I would expect them to be able to prove it to the investigation. On what you have said here this smacks of going before they were dismissed.
Even if the MA is "only" out to get the employee and you are happy to re-employ, what would this mean for their ability to do their job and the relationship of the owner occupants with the MA? Lots to think about here.
Having been in a similar situation, but reversed roles, I would be extremely cautious about re-employing in these circumstances. Possibly making a mountain out of a molehill for a moment, how do you know the employee would be safe around vulnerable people, or money & contracts? Unless you know what the allegations or proven events are you can't assess or manage the risk, all you do know is the ex-employee has been suspended pending investigation and has chosen to resign rather than see it through. Both are non-trivial steps to take and if the employee had done nothing wrong I would expect them to be able to prove it to the investigation. On what you have said here this smacks of going before they were dismissed.
Even if the MA is "only" out to get the employee and you are happy to re-employ, what would this mean for their ability to do their job and the relationship of the owner occupants with the MA? Lots to think about here.
Mr Whippy said:
Is it common for MA's to withhold this kind of information from the RTM?
Don't they have a duty of care as part of their contract to you, to provide information that might make the decision you're now facing clearer.
Or is an MA and RTM relationship essentially opaque?
The MA believes that they are not at liberty to release details either because of confidentiality or, possibly, not wanting to be sued by the employee should the allegations be false.Don't they have a duty of care as part of their contract to you, to provide information that might make the decision you're now facing clearer.
Or is an MA and RTM relationship essentially opaque?
I can see their point. I wouldn't have expected full details of the allegation and investigation.
I would formally be asking the MA to advise in writing whether there were any immediate safeguarding or security risks the occupiers and owners should be aware of. As an example it would be unfair for them to say "Bob's nicked the master keys" at this stage, but it wouldn't be unreasonable for them to say "An audit has revealed that the organisation currently do not have all sets of master keys in known and secure locations and we will be changing locks by xx/03/23". As another example, it would be unfair to say "Mary hasn't been testing the fire alarms, she's been on Candy Crush" but it would be fair to say "We will be testing the fire alarms in the block at 10am every Wednesday, please follow your fire action plan if the alarm sounds at other times".
I would also see what the block owner's agreement with the MA said about where liability for employment disputes lies.
I would also see what the block owner's agreement with the MA said about where liability for employment disputes lies.
nyt said:
Mr Whippy said:
Is it common for MA's to withhold this kind of information from the RTM?
Don't they have a duty of care as part of their contract to you, to provide information that might make the decision you're now facing clearer.
Or is an MA and RTM relationship essentially opaque?
The MA believes that they are not at liberty to release details either because of confidentiality or, possibly, not wanting to be sued by the employee should the allegations be false.Don't they have a duty of care as part of their contract to you, to provide information that might make the decision you're now facing clearer.
Or is an MA and RTM relationship essentially opaque?
I can see their point. I wouldn't have expected full details of the allegation and investigation.
Toughie. Does he know you'd give him this job if it wasn't for the allegations from his previous employer? Do you have to tell him?
Notwithstanding the specific issues around this employee, have the Directors actually properly thought of the implications and potential headaches around employing people directly?
You would need Employers Liability Insurance for starters. Then you’ll need to sort out payroll arrangements, including auto enrolment pension. Then you’ll need someone to take responsibility for all the general HR stuff - performance management, absence management, salary increases etc.
What’s the point in having a managing agent and doing things like this yourself? It makes no sense.
You would need Employers Liability Insurance for starters. Then you’ll need to sort out payroll arrangements, including auto enrolment pension. Then you’ll need someone to take responsibility for all the general HR stuff - performance management, absence management, salary increases etc.
What’s the point in having a managing agent and doing things like this yourself? It makes no sense.
Yeah, given what’s just happened with this other person, it’d be nice to distance yourself from it, not get closer to it!
And you’d definitely want watertight insurance.
I’d not be happy as a resident having a liability in employment matters because some procedure or other wasn’t carried on properly, and insurance hadn’t been properly set up either.
Thinking on from that, as a conscientious director looking to employ a person directly, the shareholders could be engaged directly.
I’m sure the allegations would quickly come to light if you were suggesting these shareholders were going to be paying a salary, pension etc to said person.
So can’t you reasonably just ask around under this umbrella of intent?
And you’d definitely want watertight insurance.
I’d not be happy as a resident having a liability in employment matters because some procedure or other wasn’t carried on properly, and insurance hadn’t been properly set up either.
Thinking on from that, as a conscientious director looking to employ a person directly, the shareholders could be engaged directly.
I’m sure the allegations would quickly come to light if you were suggesting these shareholders were going to be paying a salary, pension etc to said person.
So can’t you reasonably just ask around under this umbrella of intent?
Edited by Mr Whippy on Thursday 23 March 09:28
Gassing Station | Business | Top of Page | What's New | My Stuff