3 The House's responsibilities as
employer
31. The House's resolution was evidently intended
to minimise the practical consequences of making the House the
employer of Members' staff, leaving Members to appoint and manage
the staff themselves. But changing the employer is not a mere
bookkeeping exercise. It would transfer all the legal duties of
the employer from individual Members to the House.[43]
The House would inescapably acquire extensive new duties, and
the question for us to consider is therefore not whether it should
have those duties but how it should fulfil them following the
proposed change. In one case (dismissal) the potential new role
would determine whether the House was legally the employer at
all.
32. The change would also transfer staff from a multitude
of small teams with separate employers to a single employer, and
creating a single large pool of staff has important consequences,
discussed later.[44]
In addition it would separate the role of employer from recruitment
and day-to-day management, creating new risks for the House.
33. The legal duties we consider in this section
relate to dismissal, recruitment and health and safety. In later
sections we examine duties related to non-discrimination, the
Working Time Directive and the minimum wage.
Defining the employer
34. The Employment Rights Act 1996 defines "employer"
as a person by whom an employee or worker is employed and a "contract
of employment" as a "contract of service or apprenticeship".[45]
Relevant considerations in defining an employment relationship
include the existence of an obligation personally to perform the
work (ie substituting someone else is not permitted), the question
of control (who decides what the work will be, how it is done
and to what timescales) and the question of integration (who decides
whether a person is integrated into an organisation and by whose
policies he or she is bound, for example as regards discipline
and annual leave). Ultimately, the question of who in law is the
employer is the question of who is the party to the contract of
service, and who may bring it to an end. Accordingly, party A
can remain the employer, even where party B selects for appointment
and manages the employee on a day-to-day basis. Provided the contract
of service is made with party A and he retains the power to terminate
the contract of service, he will be the employer. Otherwise he
will not be.
Discipline and dismissal
35. Thus it would be an unavoidable consequence of
the House becoming the employer that the House alone had the power
to dismiss Members' staff and the obligation to respond to any
Employment Tribunal proceedings. Employment Tribunal proceedings
relating to Members' staff are rare (about two or three per year),
but the use of compensation payments and compromise agreements
to avoid possible Tribunal proceedings is less unusual. There
are about 20 of these each year.[46]
36. At present the House is not a party to Tribunal
proceedings concerning Members' staff. Members can claim any costs
incurred as a result of such proceedings as Staffing Expenditure,
but only up to the annual limit on Staffing Expenditure; beyond
that the cost falls on them. Once it became the employer, the
House would be the defendant in any Tribunal proceedings over
unlawful discrimination or unfair dismissal, and would be liable
for the costs; it might also be required to reinstate a member
of staff. Members would be, if anything, more rather than less
likely to get into difficult situations if the House was responsible
for dealing with the consequences, and pay-offs might become harder
and more expensive to arrange if staff were aware that the resources
of the House rather than just an individual Member could be called
upon.
37. This raises several issues. What would be the
respective roles of House and Member in cases of disciplinary
proceedings and dismissal? How could the House limit the risk
it would be exposed to (bearing in mind that compensation is unlimited
if unlawful discrimination is proved), and should the cost of
any Tribunal decision or pay-off be shared between House and Member
in some way or in certain circumstances? What would be done if
the Tribunal ordered the reinstatement of an employee?
38. Given the close relationship between a Member
and his or her staff, it would be a difficult situation if a Member
wished to dismiss but the House was not willing to endorse the
dismissal. It is harder to envisage a situation in which the House
wanted to dismiss a member of staff against the wishes of a Member,
but it could in principle happen if a member of staff committed
a serious offence such as harassment of other staff or was found
not to be doing the work. Many Members argued in their submissions
to us that the decision on whether to dismiss must be left to
the Member and that the Member should have the final word.[47]
For legal reasons this is simply not consistent with the House
becoming the employer. However unpalatable to Members, it is
unavoidable that the House's wishes must prevail if House and
Member disagree over whether Members' staff should be dismissed;
otherwise the House could not be regarded as the employer.
39. It would be important therefore that there was
a clear understanding between the House and individual Members
about what each could expect from the other in this area. This
understanding would need to cover:
- When the Member must inform
and consult the House, ie at the earliest possible stage.
- In what circumstances the House will normally
endorse a Member's decision (eg in cases of breach of confidentiality
or when proper procedures have been followed) and in what circumstances
it will not.
- When the House might take the initiative (eg
when offences have been committed such as abuse of the internet
or when well-founded complaints about conduct have been made to
it).
40. This provides an additional reason for the employing
body to be a statutory commission with Member representation,
since these would not be appropriate decisions for officials of
the House.
41. Reducing the risk to the House would involve
both good communication between the House and Members and requiring
the whole or part of the cost of Tribunal decisions or pay-offs
to be borne by the Member if he or she has been at fault. In principle,
the Member could be asked to contribute towards the cost of such
proceedings or indemnify the House of Commons entirely in such
cases. Such an indemnity or contribution would not be ordered
by the Employment Tribunal as part of the proceedings, but it
could be made a condition of supplying staff to a Member that
such an indemnity or contribution (funded if possible from Staffing
Expenditure) would be made by the Member in these circumstances.
This would of course be more difficult to arrange if it was the
IPSA which was making the payments to Members' staff. The House
would need to protect itself from the risks which direct employment
of Members' staff would impose on it by transferring some of the
risk back to Members.
42. If an Employment Tribunal ordered reinstatement,
the House would be in a similar situation to that when it needed
to redeploy Members' staff following an election, which we discuss
below.[48]
43. We have devoted considerable attention to dismissal
not because it happens frequently (it does not), but because of
its legal importance and the potential risk. Any new employment
arrangement must be able to cope with difficult situations as
well as day-to-day routine.
Recruitment
44. Recruitment is a less difficult area. The House
does not need to conduct recruitment itself in order to be the
employer, and the House's resolution provides for personal appointment
by Members to continue. The questions are whether the House should
insist on certain standards in recruitment procedures, such as
fair and open recruitment, and whether it might sometimes exercise
a veto. Most Members who wrote to us were strongly opposed to
the House having any role in this area, and particularly to the
House having a veto, arguing that the principle of personal appointment
was paramount.
45. We would favour minimal House involvement
in recruitment, because of the highly personal nature of appointments
already noted, because the rapid turnover of Members' staff would
make any involvement expensive, and because there is little evidence
of a problem justifying an expensive remedy. The House's main
interests would be to ensure that there was no unlawful discrimination
and to discourage methods which might result in problems later
through unsuitable people being recruited.
46. We agree with those who argued that political
affinity is an important aspect of working for a Member. Fair
and open recruitment (unlike selection on merit) does not preclude
making a particular political allegiance a criterion for appointment,
given that this is often genuinely necessary to perform the job
well. Some Members do advertise posts,[49]
but making this compulsory would make recruitment more expensive,
slower and more time-consuming, and it would create a requirement
to be demonstrably fair to all applicants. As one Member put it:
"Only I know the qualities I am looking
for in an applicant. This does not always mean the most qualified
on paper for the job; I need to ensure that staff have the skills
and personal qualities to deal with the constituents and a grasp
of the political nuances and implications of issues we are dealing
with. This is also a small office with at times a stressful workload
which makes it essential that all members of staff can work well
together."[50]
47. We see no reason to impose a requirement for
fair and open competition, provided that certain minimum standards
are adhered to. These would include checking that the person is
capable of doing the job, checking references and ensuring that
the person has authorisation to work in the UK. The Member would
be required to declare that such standards had been adhered to,
and that declaration, with documentary evidence where possible,
would be sufficient. We do not believe this would be onerous,
and it could protect Members from the consequences of imprudent
appointments. We propose that it be a condition of Staffing
Expenditure that Members report in respect of new staff that certain
standard recruitment procedures have been followed.
48. We have considered how the House might ensure
there was no unlawful discrimination in appointments, and have
concluded that this would have to be left to the good sense of
Members, as it is now. In the event of a Tribunal case the indemnity
mentioned above would come into play.
49. The House currently has no veto over Members'
appointments of staff, and we see no reason to change this (except
in one respect) if the House becomes the employer. If a proposed
member of staff poses a security risk, this can be dealt with,
as now, by not providing a pass and not allowing access to the
Parliamentary Network. The one area where the House would need
to exercise a veto is if it became apparent that the recruit did
not have authorisation to work in the UK, for which there is a
penalty of up to £10,000. Any such cases will be identified
by the Members' Staff Verification Centre.
50. Some concern was expressed to us that if it became
the employer the House would impose a retirement age on current
staff.[51] We would strongly
oppose any attempt to restrict Members' discretion and the opportunities
available to staff in this way.
Health and safety
51. As employer, the House would have responsibility
for health and safety in premises where Members' staff work. It
already has this for the Parliamentary Estate at Westminster;
what would be new would be responsibility for premises scattered
throughout the UK, including some workplaces within homes. The
employer's health and safety responsibilities are the same for
employees working at home as for other employees.
52. Some Members' staff argued that greater involvement
of the House in health and safety in constituency offices would
be beneficial. One stated that his current workplace would not
pass any health and safety inspection, and that the Member spent
little time in the constituency office, and another that "I
have worked previously in an office which broke a number of H&S
guidelines and was a completely unsafe environment to work in."[52]
Several referred to the security problems of constituency offices,
such as the risk from violent members of the public and the absence
of mail screening.[53]
Others opposed any House involvement.[54]
53. Members tended to argue that they should retain
responsibility for health and safety in their own premises, but
the House would not in fact be able to sub-contract this responsibility
to Members, since they are not its employees. Nevertheless we
favour the lightest possible touch consistent with ensuring employees'
safety, as follows:
- Training and advice for Members
and Office Managers.
- Self-certification of premises by Members.
- A limited and risk-based audit regime, using
regionally-based teams to minimise the cost.
- A reserve power for the House to remedy any problems
and deduct the cost from the Member's Staffing Expenditure, and
in extremis to prevent staff working in the premises in question.
54. The House could fulfil its health and safety
responsibilities for constituency offices by a combination of
training and advice, self-certification by Members, a limited
audit regime and a reserve power to remedy problems or withdraw
staff. Somewhat different methods would be needed where staff
work at home; the House would still need to satisfy itself in
these cases that work spaces were fit for purpose and safe.
43 If the House were the employer, contracts of employment
would be governed by the law of England and Wales, even if the
Member for whom the staff worked sat for a constituency in Scotland
or Northern Ireland. Back
44
Paras 56-63, 66, 68-72 below. Back
45
Section 230, Employment Rights Act 1996. Back
46
Information from the Department of Resources. Back
47
eg MS 11, 21, 29, 34. Back
48
Paras 56-63. Back
49
MS 10. Back
50
MS 20. Back
51
MS 3, 4. Back
52
MS 60, 79. See also MS 52, 59. Back
53
MS 47, 86. See also MS 33. Back
54
eg MS 58, 92. Back
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