Employment of Members' staff by the House - House of Commons Commission Contents

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.


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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Prepared 27 October 2009