According to Inside Housing last week (but unfortunately not on the IH website), housing associations with paid board members are exposed to legal challenge on age bars on boards:
A shake-up of employment law has left social landlords vulnerable to legal action from paid board members, lawyers have warned.
Measures introduced by the Employment Equality (Age) Regulations 2006 late last year could pave the way for disgruntled board members to file employment claims against housing associations.
Chief among concerns are new rules that dictate how organisations can impose a compulsory retirement age on board members.
I’ll leave to one side the issue of the iniquity of age bars in organisations committed to equality and that the fact that older board members can make an effective contribution to governance.
I would suggest that housing associations put their rules right asap but also think about this in a broader context.
Firstly, housing associations should be adopting the National Housing Federation’s recommended practice of a nine year cap on board membership. I believe the overwhelming majority of associations do so. However, many also have the bizarre provision for capped members rejoining after one year which weakens the cap as a means of refreshing boards with new blood.
Secondly, housing associations should be ensuring that their boards do have a mix of ages. While the NHF Board Members conference last week had quite a few delegates under 50 (and the numbers seem to grow each year along with other evidence of diversity), there is a case for housing associations to work hard to recruit a few more young-ish board members. Linked to that housing associations should be thinking about the practicalities of the timing of meetings, the payment of childcare costs, etc.
Thirdly, housing associations need to think about how they can get the voice of younger residents heard in decision making processes. I’m not an expert in this field so I’ve no easy answers, but I do know it is important.
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An interesting comments and I suppose it is a subsidiary effect of the legislation which was not really framed to deal with this area. The law does extend to 'workers' on a contract for personal service in addition to employees.This regulation applies to—
(a)any office or post to which persons are appointed to discharge functions personally under the direction of another person, and in respect of which they are entitled to remuneration; and
(b)any office or post to which appointments are made by (or on the recommendation of or subject to the approval of) a Minister of the Crown, a government department, the National Assembly for Wales or any part of the Scottish Administration,but not to a political office or a case where regulation 7 (applicants and employees), 9 (contract workers), 15 (barristers), 16 (advocates) or 17 (partnerships) applies, or would apply but for the operation of any other provision of these Regulations.
(9) For the purposes of paragraph (8)(a) the holder of an office or post—
(a) is to be regarded as discharging his functions under the direction of another person if that other person is entitled to direct him as to when and where he discharges those functions;
(b)is not to be regarded as entitled to remuneration merely because he is entitled to payments—
(i)in respect of expenses incurred by him in carrying out the function of the office or post; or
(ii)by way of compensation for the loss of income or benefits he would or might have received from any person had he not been carrying out the functions of the office or post.
By way of conclusion, it certainly does not cover unpaid board members who only receuve expenses, etc. In addition, and reading the definition carefully,it may be a neat legal challenge to fit a complaining board member in. Who are they 'under the direction of' - surely independence is the key?
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