Purpose
1. ESA’s Grievance Procedure provides a forum for handling complaints that an ESA member has breached the ESA Code of Conduct (the “Code”).
2. This is a self-regulatory rather than a legal process. ESA has no special statutory powers to regulate the sponsorship industry. However ESA members are required, as a condition of membership, to comply with the Code and to submit to ESA’s Grievance Procedure. ESA has no ability to impose sanctions on entities who are not ESA members, so will only usually consider complaints about ESA members or, at the absolute discretion of the ESA Chairman, former ESA members.
Principles
1. Complaints may be brought by ESA members or by non-members. Complaints that cannot be resolved informally will be adjudicated by the ESA Grievance Panel.
2. The Panel may vary from complaint to complaint but will comprise three representatives from different ESA members. These will usually be the ESA Chairman and two other members appointed by the ESA Chairman. The names of the Panel members will be made available to the parties.
3. No member of the Panel shall have any active business relationship with or be a direct competitor of either the Complainant or the Respondent (the ESA member), or be connected with or hold any interest in any entity or individual that is the subject of the complaint. Panel members shall be required to declare that, so far as they are aware (having made reasonable enquiry) they have no such conflict of interest. (If the ESA Chairman is not able to sit on the Panel then the role of the ESA Chairman on the Panel and the responsibility to appoint the other Panel members shall be taken by the ESA Vice-Chairman or, if that is not possible, by such other ESA member as the ESA Board shall appoint for such purpose.)
4. The ESA office will manage all communications between the parties, unless the Panel Chairman stipulates otherwise. Other that as set out in these rules, the ESA office will not have any involvement in the assessment of the complaint or any decision made.
5. Complaints and investigations are handled in writing and in the English language. There is no provision for oral hearings. Where documents supplied by a party are not in English, it is that party’s responsibility to provide accurate English translations.
6. ESA shall be entitled (but not obliged) to disclose to the Complainant, to the Respondent, to the ESA office and to the Grievance Panel any or all allegations, responses and supporting documentation made available or obtained in connection with the complaint and its handling. Otherwise, information obtained or generated through the complaint handling process will be kept confidential amongst these parties, and (other than as required by law and save to the extent it has legitimately come into the public domain through other channels or is included, by ESA, in any formal public or member announcement in relation to the complaint) may only be disclosed or used for other purposes with the permission of the party who originally provided it. Both the Complainant and the Respondent are required to respect this confidentiality. Nothing in this Grievance Procedure shall prevent ESA or the Grievance Panel from disclosing such information to law enforcement bodies as they believe in good faith is appropriate in all the circumstances.
7. Currently, ESA does not normally audit members for compliance with the Code. Accordingly the Grievance Panel will usually only investigate following receipt of a complaint. However ESA is entitled to initiate an investigation even if no complaint is received. Further, the Panel may add additional challenges of its own where a complaint is brought.
Co-operation
1. ESA members are required, as a condition of membership, to accept the jurisdiction of the Grievance Panel and to co-operate fully with any investigation or enquiries by the Panel.
2. All correspondence from ESA to a member regarding a complaint will be addressed to the designated main ESA contact using the address/contact details held by the ESA office at that time. ESA members are responsible for ensuring that these details and the identity of the main ESA contact individual within their organisation are kept fully updated.
3. Failure to supply in full such information, documentation or other items as the Panel may request within such deadline as the Panel may stipulate, or failure to comply with the Grievance Procedure, will be treated as a breach of the Code in and of itself and may result in one or more sanctions being applied. It may also lead to more severe sanctions being applied in the event that the Respondent is held to have committed other breaches of the Code.
4. Equally, if the Complainant fails to provide information, documents or other items within deadlines imposed by the Panel or fails to comply with the Grievance Procedure, the Panel shall be entitled to dismiss or limit the complaint as it sees fit.
5. The Panel will set deadlines that it considers in good faith to be reasonable in all the circumstances. It has a discretion to extend time limits under the Grievance Procedure, but will not normally agree to any extension unless it considers (in its absolute discretion) that this is necessary for a fair process and would not lead to undue delay. It will consider in good faith any representations made as to why additional time may be required or why certain items cannot be provided. However both Complainant and Respondent are expected to use all reasonable efforts to comply with the Grievance Procedure and the Panel’s requests and to make adequate resource available for this purpose. Existing business or personal commitments will not normally be seen as a valid reason for non-compliance with Panel requests. Any request for additional time must be made promptly and for bona fide reasons.
6. Members must comply with any conclusion reached by the Grievance Panel, including any sanction.
Sanctions
1. Where the Panel finds an ESA member to be in breach of the Code it may, depending on the circumstances, apply one or more of the following sanctions:
a. seek an undertaking from the member that the breach will not be repeated and, if appropriate, agree alternative procedures/practices with the member;
b. issue a formal written reprimand to the member that would normally be made public, including specifically informing the membership that such action has been taken (the member will be given an opportunity to see such a statement and to comment before publication);
c. require the member to appoint a Compliance Officer and to review and report on its Code compliance in such form and with such frequency as the Panel may stipulate;
d. suspend or, if the circumstances warrant, terminate membership of the Association, informing the Association that such action is being taken;
e. issue a public statement giving reasons for the suspension or expulsion;
f. report any disciplinary action taken in any public report on compliance with the Code; g. request any relevant public authority or enforcement body to apply for an injunction.
2. ESA shall be entitled, in any public or member announcement relating to the complaint, to identify the Respondent and/or the Complainant by name, in the Grievance Panel’s absolute discretion.
3. Even where no breach of the Code has been found the Panel may nevertheless recommend ways in which the Respondent and/or the Complainant might amend their practices/procedures.
Other forums
1. The Complainant and Respondent must keep the Grievance Panel fully informed at all times of any legal or regulatory proceedings relating in any way to the subject matter of a complaint.
2. If the Panel considers that the complaint or aspects of it should more properly be adjudicated in a court of law or through some other regulatory, self-regulatory or law enforcement process, the Panel may in its discretion elect to dismiss all or part(s) of the complaint, remit all or part(s) to the relevant regulator or law enforcement body, suspend adjudication of all or part(s) pending the outcome of any other process and/or adjudicate itself on all or part(s) of the complaint. (The Panel may in particular (but without limitation) decline to adjudicate on complaints (or parts thereof) that are essentially of a contractual nature or which relate to breaches of advertising, direct marketing or sales promotion codes or which it believes would involve disproportionate cost or resource to adjudicate on fairly.)
3. The Grievance Panel may take into account any breach of other relevant codes of practice and any findings of the courts and relevant self-regulatory bodies in reaching its decisions.
4. Respondents and Complainants waive any rights they might otherwise have to bring legal proceedings (whether for defamation, negligence, breach of confidence or otherwise) against ESA, its staff and/or its officers arising from or in connection with the complaint, ESA’s handling of it and any announcement made (save that no rights are waived in relation to actions or statements that are fraudulent or malicious). A party’s only recourse if they are dissatisfied with a decision will be the Appeal Procedure set out at (G) below, in those circumstances where it is available.
Procedure
1. Complaints must be submitted in writing using the template provided for this purpose by the ESA office and addressed to the ESA Chairman c/o the ESA office. They must be accompanied by all supporting documentation, such as correspondence. Complainants are required to disclose their identity and address.
2. Complainants are required to confirm in writing that they submit to the provisions of ESA’s Grievance Procedure and, where appropriate, that they have used reasonable endeavours to resolve the matter directly with the Respondent without success. Where a complaint is made by an organisation, the person submitting the complaint must confirm that they are authorised to do so.
3. Where a complaint can be answered by the ESA office without reference to the Respondent, a copy of any correspondence must be sent to the Respondent. (This may happen for instance if the complaint clearly discloses no breach of the Code.)
4. If a complaint appears to relate to a minor breach, the ESA office may invite the Respondent member to attempt to resolve the matter directly with the Complainant (an “informal resolution”). If the ESA office does not receive satisfactory evidence within 10 working days of such invitation that an informal resolution has been achieved, it will proceed with the formal investigation procedure.
5. Where formal consideration by the Grievance Panel is required, the ESA office will send copies of the complaint and supporting documentation to the Grievance Panel members together with a proposed summary of the complaint. Following consultation with the Grievance Panel members, the ESA office will send a summary of the complaint to the Respondent, inviting the Respondent to reply and where appropriate identifying information, documentation or other items that the Respondent will need to supply.
6. The ESA Board will be informed that a complaint has been received. They may be given general details as to the nature of the matter, but will not (other than as necessary for the appointment of the Grievance Panel) be informed at this stage of any of the parties involved nor given sight of any of the correspondence.
7. The Respondent must respond within 10 working days, together with full supporting documentation.
8. The ESA office will send both the Complaint and the Response, together with supporting documentation to the Grievance Panel. The Panel will then consider the complaint, and may require either party to provide additional information as necessary.
9. The Panel will aim to reach a conclusion within two months after the start of the formal process. However this may not always be possible, for instance if there are delays in either party providing information requested, if the matter is complex or if new issues arise in the course of the investigation.
10. Following the Grievance Panel’s adjudication, the Panel Chairman shall advise both parties of the outcome, of any sanctions applied (where relevant), of the potential availability of the appeal procedure and as to whether any confidentiality obligations applicable to the case have been lifted.
Appeals
1. Subject to the following, the Respondent and the Complainant are both entitled to appeal against the Panel’s ruling and/or against any sanctions imposed by the Panel. Where it has imposed sanctions, the Panel has a discretion, on the application of the Respondent, not to implement these until all appeal mechanisms have been exhausted.
2. The Appeals Reviewer is appointed by the ESA Board after appropriate consultation.
3. Any appeal must be submitted in writing to the Appeals Reviewer within 10 working days of the Panel communicating its decision.
4. The Appeals Reviewer will hear an appeal on one or more of the following grounds only:
a. substantial new evidence has emerged affecting the reliability of the original decision (and a satisfactory explanation can be provided as to why it was not made available to the Panel previously);
b. the decision is one that no reasonable tribunal could have reached;
c. the ESA Grievance Procedure has not been adhered to, with the result that the appellant’s position has been significantly prejudiced; and/or
d. the Panel acted outside the scope of its authority.
5. Where the Appeals Reviewer agrees to review a decision, he will carry out such further investigation as he thinks appropriate. He will inform the other parties that a request for review has been accepted and will invite their comments.
6. Where the Appeals Reviewer finds in favour of the appellant, he will refer the decision back to the Panel and direct it to reconsider its findings, except where a decision has been found to be perverse, in which case the Appeals Reviewer will make his own decision which will be final and binding. The Panel shall adjudicate on any case redirected by the Appeals Reviewer within 30 days of his decision.
7. Once an earlier decision has been confirmed or substituted under this procedure, that decision shall be final and binding.
–ENDS–
