FCSA: How our arbitration panel terms and new whistleblower hotline help ensure compliance

Following the formation of our new Independent Arbitration Panel (IAP) here at the FCSA, we’ve noticed some online discussions about how we serve the contractor community and where the new panel terms fit in.

In this piece, exclusively for ContractorUK, I want to explain what the association does, how we deal with complaints, and outline our overall stance on compliance by member companies, writes Chris Bryce, CEO of the Freelancer & Contractor Services Association.

What FCSA does

Firstly, let me point out that FCSA is a not-for-profit trade association. We’re not a regulator or statutory body.

We’re also not a ‘for-profit’ company with shareholders or owners expecting dividends or profits. And, just like many other trade associations, we require our members to meet certain standards.

Unlike any other organisation in the UK contractor sector that we know of, we are open and transparent about our codes -- in that we publish them on our website. These codes are reviewed and updated by us with input from tax and legal experts, other industry bodies such as the Recruitment & Employment Confederation (REC) and the Association of Professional Staffing Companies, government stakeholders such as BEIS and HMRC. We also consult from time-to-time with other organisations working in our field. When we have completed the review, the codes are previewed to members for comment, and then published for all to see.

Then, members are regularly assessed against these codes. Importantly, this assessment is carried out not by FCSA, but by a panel of highly-regarded professional services firms – and we publish the identities of the panel members on our website.

Our members contractually commit to adhering to our codes in the course of their business. Related, occasionally we receive (and subsequently investigate) reports that a member has breached our codes.

Breaches of FCSA codes

When we receive evidence of a breach of codes, whether it’s related to a new complaint by an individual or evidence provided by a third-party, we take steps to investigate and follow documented procedures. The goal here is to ensure any issues are dealt with fairly and effectively.

At the time of writing, and despite many parties online claiming to have evidence of wrongdoing by FCSA members, so far, we have only ever received complaints from individual workers (including contractors) about specific cases. One reason which may explain this is that we find members tend to hold each other to account, including in the past by reporting any alleged wrongdoing to the FCSA. The reasoning to this is that the complainant expects the same high standards that they are bound by to be adhered to by their fellow members.

We would welcome and encourage any third-party claiming to have evidence of wrongdoing by an FCSA member company to bring it to us, so we can review and take the appropriate action. Yet we cannot act on just hearsay -- no matter how strident it is nor how many ‘likes’ a bit of gossip receives online. I believe doing so would be unfair and would run against natural justice.

FCSA’s complaints process

FCSA has a robust complaints process in place, and this process is applied fairly and equally. To facilitate this, we openly publish it online. It can be viewed here.

We do ask that complainants have already exhausted our member’s own internal complaint or grievance process, before they approach FCSA. This is standard business practice, and it gives our members the opportunity to resolve any issues directly with their workers. Almost needless to say, since we’re not a regulator, any complaint which has already ended up in the legal system or with a statutory body, no matter at how early a stage, is not one we can examine. No ADR process we’re aware of will do this!

In light of the online reaction to the IAP’s terms, I’d like to make clear that we will step in and investigate complaints where an FCSA member is involved and, when we uphold a complaint, we will inform both the complainant and the member, of a proposed resolution.

Further, where necessary, we can take measures to ensure that the resolution and any sanction is enforced. This enforcement can take the form of:

• a simple agreement and remedy between the member and the complainant; or
• a financial penalty payable by the member to FCSA; or
• suspension or termination of FCSA membership; or
• a combination of all three.

When a member company comes to an agreement with a complainant before FCSA’s adjudication, and it is our determination that the complainant has made this agreement willingly, then at that point we confirm with the contractor that they consider the matter closed before we draw line under the issues. However, we may make further recommendations to the member to ensure a similar circumstance is not repeated.

The role of the Independent Arbitration Panel

The IAP has the delegated authority of the FCSA’s board to arbitrate on complaint outcomes, where the complainant or member believes (and can evidence) that FCSA has erred in process or in interpretation of the codes.

The IAP won’t consider cases where the complainant or member is merely dissatisfied with the outcome. That sort of caveat is in place at appeal courts in the UK.

Our members are required to follow any determination reached by the IAP. Should an FCSA membership be suspended or terminated following our investigation and/or the IAP’s consideration, we will publish the outcome for everybody to see. This feeds into our goal to be fully transparent.

The new FCSA whistleblowing hotline -- that YOU can telephone very soon

And now I’d like to reveal something extra, so more parties can hopefully benefit from the processes we have in place. Next week, the FCSA will publish details of our new whistleblowing hotline. The hotline will be for absolutely ANYONE to call and leave information concerning alleged wrongdoing by any FCSA member company.

But as mentioned previously, we can only act where we have solid evidence. Hearsay, rumour and innuendo will not suffice, particularly where the parties involved could potentially suffer reputational or financial loss. That would be unprofessional, unfair and unjust.

What I, as chief executive can commit to is this – that the FCSA guarantees it will investigate any and all evidence-based allegations, properly and fully. And of course we commit to that undertaking while taking action to ensure that any breaches of codes do not get repeated. My hope is that this article has demystified for some, how the FCSA is tackling potential non-compliance by members and enabling workers -- contractors -- to help us with that goal.