APPENDIX: LOCAL GOVERNMENT (STRUCTURAL
AND BOUNDARY CHANGES) (STAFFING) REGULATIONS 2008 (SI 2008/1419)
Additional information from the Department for
Communities and Local Government
1. We have been asked for a note clarifying the
Department's decision not to require open competition for chief
officer posts (beyond that of head of paid service) of the new
single tier councils and - whether or not such a requirement were
made - not to make specific provision as regards redundancy and
access to pensions for other senior staff.
The Government's policy intention
2. The Government's policy intention, as stated
during the Parliamentary debates on the seven structural change
orders, is that 1 April 2009 must mark a genuinely 'new start'
for authorities of which local people will have wholly different
expectations (see, for example, Official Report, 19 February
2008, column 303). More specifically, it is essential that,
in each of the new single tier councils, there will be a new or
'refreshed' senior management team.
3. Alongside this overarching policy aim is the
equally important policy objective that it must be for each of
the new single tier councils themselves to decide their senior
management structures and to undertake the steps needed to put
these in place. This is a key element in the Government's overall
approach to local government restructuring following the Local
Government White Paper 2006 and under Part 1 of the Local Government
and Public Involvement in Health Act 2007: Government is creating
a framework and putting in place the essential arrangements, allowing
local leaders to make the majority of decisions in the light of
local circumstances to implement the proposals for local government
restructuring which were put forward by local councils themselves
for their own areas.
4. It is this context which has led the Government
to conclude that the approach to senior staffing in each of the
new single tier councils should be one which involves:
a) In every case, the head of paid service -
the most senior officer and leader of the senior management board
and all the employees - should, by no later than twelve months
after the reorganisation date (i.e. in the seven areas for which
structural change orders have been made, by 1 April 2010 at the
latest) be appointed through open competition. This reflects both
the importance of this leadership position and that, without exception,
this post will exist in each new single tier council. Moreover,
the recognition that in different cases this competition may be
undertaken at different times reflects the fact that, depending
on local circumstances, the need for a fresh appointment may have
to be balanced against the need at particular points in the transition
process for some continuity of leadership.
b) In relation to other senior management board
posts, the number and responsibilities of which will almost certainly
be different in each of the new single tier councils, the majority
of such posts should, over a period of time, be subject to open
competition. This less rigid policy objective than that for the
post of head of paid service recognises both the overriding aim
of a 'new start' for the authority and the importance of local
flexibility to enable each new council to adopt the management
structure it considers appropriate.
c.) In addition, it is our policy intention that
in this reorganisation, where any officer loses their position,
they should be eligible for the normal redundancy compensation
or severance arrangements.
Implementing the Government's policy intention
5. The Government has adopted a twin-track approach
to implement its policy intentions on senior staffing, which has
met with the broad agreement of the Implementation Executives
and Shadow Councils in each area. This twin-track approach is
within the wider context where the transfer of functions to a
new single tier council is to fall within the scope of a 'relevant
transfer' under the Transfer of Undertakings (Protection of Employment)
Regulations 2006 ('TUPE'), which is explained at paragraph 2.2
of the Explanatory Memorandum. In summary, the twin-track approach
is to:
a) make provision in the Local Government (Structural
and Boundary Changes) (Staffing) Regulations 2008 ('the Staffing
Regulations') to require an appointment to the post of head of
paid service of the single tier council by means of open competition
(and this includes eligibility for any appropriate redundancy
compensation); and
b) to set out in guidance the Government's intentions
for the majority of other senior management board posts, highlighting
the outcome which the Government expects and the rationale for
this. Such other appointments should be made in accordance with
the principles of TUPE, which in particular provides that an employee
may be fairly dismissed where the sole or principal reason is
a reason connected with the transfer that is an economic, technical
or organisational ('ETO') reason entailing changes in the workforce
of either the new or old employer before or after a relevant transfer
(TUPE regulation 7). Therefore, new senior management appointments
may be made through competition where this is needed on the grounds
of an ETO reason entailing changes in the workforce.
6. We have chosen this twin-track approach on
the basis that we should make specific provision in regulations
about senior management board appointments (beyond the TUPE provisions)
only where this would both significantly facilitate the achievement
of the policy intention for a 'new start' and would present no
significant risk to the policy aim of local flexibility as regards
the structure of the senior management board.
7. In the case of the wider senior management
board, the grounds of an economic, technical or organisational
reason can be expected to present, in most circumstances, a basis
for the achievement of the goal of the majority of senior management
board posts being subject to open competition over a period. Moreover,
we know that Implementation Executives and Shadow Councils intend
to make wide use of open competition. Therefore, specific provision
would not significantly enhance the scope for such competitive
appointments being made. Furthermore, any specific provision would
significantly increase the risk that local flexibility, as regards
the structure of the senior management board, would be restricted.
For example, some Implementation Executives or Shadow Councils
might decide that the senior management board of the new single
tier council should be structured according to the key areas of
service delivery, with a director of children's services, a director
of adult's services, a director of environmental services, a director
of housing and so forth. Other Implementation Executives or Shadow
Councils might wish to move to a radically different structure
consisting of a director for place, a director for people, and
a corporate director. Any specific provision to require the senior
management board posts to be subject to open competition would
have to define which posts constituted a senior management board,
and would therefore restrict the flexibility for these decisions
to be made locally.
8. In contrast, without specific provision for
the post of head of paid service of the new single tier council,
there is a risk that there would be circumstances where - whatever
the local intention - it would not be possible for an economic,
technical or organisational reason to make an appointment to that
post by open competition. Moreover, we can safely make specific
provision without any significant risk to local flexibility (as
there will always be a head of paid service who is both the leader
of the senior management board and employees generally).
9. In relation to the policy intention relating
to eligibility for redundancy compensation and severance arrangements,
wherever a person ceases in employment through the operation of
an economic, technical or organisational reason, the expectation
is that this will be by reason of redundancy. In these circumstances,
the Local Government (Early Termination of Employment) (Discretionary
Compensation) (England and Wales) Regulations 2006 and the Local
Government Pension Scheme (Benefits, Membership and Contributions)
Regulations 2007 will apply. The person will therefore be considered
eligible for redundancy payments in accordance with the employer's
policy under the 2006 discretionary compensation regulations.
In addition, the early receipt of Local Government Pension Scheme
retirement benefits may be appropriate, i.e. where the officer
is a scheme member aged 55 or over.
10. In light of uncertainty that an incumbent
head of paid service in a predecessor council, who was not appointed
to that post in the new single tier council, might not be regarded
as being dismissed by reason of redundancy, there is a risk they
would not be eligible for any redundancy compensation. It was
not the policy intention to preclude an outgoing head of paid
service from eligibility for redundancy compensation, and provision
has, therefore, been made for this circumstance. This provision
ensures that such heads of paid service will have the same eligibility
as other staff - being neither advantaged nor disadvantaged. In
short, the provision ensures that an incumbent head of paid service
in this position is not unfairly deprived of the opportunity to
be considered for redundancy compensation in the same way as his
counterparts in predecessor councils being dissolved and wound
up, who are likely to satisfy the definition of redundancy as
a consequence of the restructuring.
10 June 2008
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