Protecting the statutory officers
A Weightmans survey reveals considerable uncertainty around new protection for statutory officers. Graeme Creer and Mark Leach report on the findings.
New regulations around how councils discipline and dismiss senior members of staff were brought in this May, with local authorities required to amend their standing orders no later than the first ordinary meeting of the authority falling after 11 May 2015.
Therefore many local authorities are currently in the middle of this process – however, these changes are proving tricky to put into practice and there are some choices, pitfalls and uncertainties amongst local authorities – especially as there has not been much or any prior consultation or guidance or coordination from the Department for Communities and Local Government or the Local Government Association.
In order to ascertain what local authorities are doing to implement these changes and to help those responsible to share ideas and good practice and form a common view on some of the unanswered questions, Weightmans invited a number of local authority legal service heads to complete a short survey.
The results as detailed below form a picture of uncertainty amongst legal service heads.
Standing Orders and makeup of the panel
When asked when did these local service heads change their standing orders, or plan to, the majority (68%) did or will make the change at the next ordinary meeting in June or July, one quarter made the change at Annual Council in May and 7% did not know, but this probably reflects the information to hand when the questions were answered rather than uncertainty about the whole process. The duty to make the change at a particular meeting is, in truth, unenforceable. Tongue in cheek, we wonder if the Monitoring Officer’s reporting duty would be triggered?
Over half of respondents (57%) confirmed they are planning to appoint a standing panel or make appointments when and if required. Over a quarter (27%) are appointing a standing panel, and 16% did not know. The tendency to postpone the appointment of this panel is understandable, particularly if the local authority have no intention of dismissing anyone just now. But there are three sets of decisions to take into account - the first is to determine the composition, terms of reference and quorum of the panel. That is a full council decision, and is better taken straight away. The second is to select the IPs to invite, and to authorise the invitations. This can be delegated, but in default will fall to full council. The third is to make the appointments, which again is a full council function, because the panel will be a committee. It can be awkward and time consuming to seek a full council decision in the throes of the furore that usually accompanies this kind of event. This is not unlike the need for a full council decision to appoint a DIP under the old system, which was one of the reasons for delay.
How many IPs and their roles?
The majority of respondents (58%) confirmed they will be opting for two IPs on the panel and surprisingly, a third of the respondents did not know, indicating perhaps some uncertainty about the makeup of the panel. This could mean that even more work would need to be done when the need arose, potentially involving two separate full council decisions. The risk with two IPs is that the panel members will disagree - this would necessitate the exercise of a casting vote by whichever of the two is appointed to chair the panel. Hopefully, full council will appoint the chair when appointing the members of the panel. If not, there could be a complete impasse.
The level of uncertainty around whether substitute members will be appointed is also surprising, with 45% confirming they did not know. The advantage of substitutes or reserve members in this context is that, when the need arises, the primary members might be unavailable, on conflicted, or that IPs might decline. The risk is that the decision will be challenged by the officer if the system is manipulated unfairly and the case law that a substitute appointment is political and beyond challenge in a very different context. A transparent and mechanical process, certainly for the IP substitutes, would be the best approach.
The responses to the question ‘will you appoint members of the authority to the panel as well as the Independent Persons?’ reveal that the majority (51%) would appoint members to the panel. This was certainly not the Government’s intention. Kris Hopkins MP told Parliament that the regulations will “require the council to consider any advice from a panel of independent persons”, and Paul Rowsell’s letter to Chief Executives said “full Council … must consider any advice views or recommendations from an independent panel” and “the Council is required to invite independent persons … to form an independent panel”. It will be criticised as an attempt to pack what is meant to be an independent check on the administration with members who can outvote the independents, bringing with it proportionality issues. We have probably not heard the last of this.
There was a spread of views on who the function of dismissing a statutory officer (subject to approval by the authority) will be discharged by - 21% envisaged that the decision would be taken by a committee, and 45% thought it would be taken by full council. No one said that the decision would be taken by an officer, but 14% said that it would depend on which officer it was and 20% did not know.
The regulations envisage a two stage process: a decision by a committee or officer, then approval by full council. Employment law principles, the ACAS Code of Practice and the JNCs for Chief Officers and Chief Executives all incorporate a right of appeal against a decision to dismiss. If the whole shebang goes to full council then it will be difficult to fit in the mandatory consultation with the executive, and members would have to be held back from the council meeting to form an appeal panel. This may not be perceived as an effective appeal. Also, the IP Panel would have to come to a view before the hearing, which does not appear satisfactory.
The all-important timings - meetings and decision making
When asked when the panel of IPs will come to a view there was again a combination of views. Although no one thought that they should do so at the start of the council meeting, 13% said they would take their decision at the same time as the decision to dismiss, 29% after the decision to dismiss, and 18% at some other time – perhaps before the committee meeting or the full council meeting if there is no committee. An unusually high proportion, 40%, did not know.
The mechanics of this will be challenging. The best approach is probably to arrange a panel meeting after the committee meeting, so that the panel can know what the committee has decided and have access to all the material. It may not be safe for the panel to take a decision before the hearing, because relevant material may emerge during the hearing.
Again there was not any clear opinion on if the committee deciding to dismiss and the panel would meet together - 11% said that this did not apply as there would be no committee. 22% said that they would be the same body. One authority thought that it was not possible for there to be a single body, but that there would be a joint meeting. 7% said that the IPs would attend the committee meeting as observers. 24% said that there would be separate processes and 34% did not know.
You can see the attraction of a single session, but there may be risks and a single body may not be possible. The panel is an advisory committee, which can only express a view, and containing voting co-opted members. The committee is discharging the function of dismissing, and co-opted members cannot vote. The idea of a joint meeting overcomes this, but it will be difficult to ensure that the hearing is fair if the participants have different roles and voting rights.
When asked if the panel will take a decision before, after or at the same time as executive members are consulted on the proposal to dismiss, 40% said that they would take a decision before consultation, so that executive members will know their views. 6% said that they would take the decision after consultation, so any objections can be resolved first. 13% said that they would take the decision at the same time, to avoid delay. 41% did not know.
There is no right or wrong answer here. On the one hand, the consultation will benefit from the IP’s input. On the other hand, the basis for the decision could change if there is an objection. If the process is entirely sequential (committee decision, executive consultation, IP meeting (or vice versa) then council meeting) it will take a long time, and there is potential for some confusion.
JNC T&Cs
The spread of opinions on whether the Chief Executive JNC terms and conditions currently guarantee an investigation by a designated independent person is not surprising - 3% said that the JNC T&Cs did not apply in their authority, 20% thought that they were overridden by the new regulations, 30% thought that a DIP investigation was guaranteed, but one authority said that they did not interpret the JNC in that way. 12% said that they did guarantee a DIP investigation, but the DIP’s recommendations are no longer binding. 34% did not know.
The Chief Officers’ JNC is less prescriptive, but it contains pages of advice based on the assumption that the DIP process is still in place. This detailed analysis was put in place because the previous version was unworkable. No one knows for sure what the current contractual position is, and everyone will hope that the JNCs resolve this before it becomes important.
Given that, 47% said that they were not planning to renegotiate the terms and conditions of any of their authority’s statutory officers, pending a review of the JNC's guidance. No one has done this already, but 10% said that they were planning to renegotiate.
In principle it would not be unreasonable to ask the statutory officers to agree to changes which reflect the new regulations, but most will wait and see. It is imperative that the JNCs come to grips with this as quickly as possible, but it may not be a quick process.
Disciplinary procedures
Many local authorities have detailed disciplinary procedures for staff not covered by these two JNCs or the statutory protection, but there is a variable picture for chief officers. It will be necessary to put something in place which reflects the new regulations, and it is comforting that the majority (41%) have this in mind, with an impressive 12% having done this already.
As the regulations now require dismissal of a protected officer for non-disciplinary reasons to be approved by the full authority, almost a third (32%) said that they had revised their standing orders and procedures and 46% said that they planned to do so. Two authorities were not taking any steps and 19% did not know.
This is certainly the effect of the new regulations, so that dismissal for ill-health or redundancy, for example, is now subject to full council approval, although the IP Panel will not be involved. Whether this was intended is not clear. A careful check of standing orders or officer employment procedure rules is needed to ensure that this is built in.
Conclusions
These responses clearly illustrate the degree of uncertainty about how these new procedure will work in practice, and that there is a range of opinions on some of the options.
Hopefully the Local Authority Employers and the JNCs can come to grips with the consequences of the regulations quickly. Until they do, many authorities will not put the processes fully in place.
However it would be advisable for authorities to consider these issues as soon as they can. It is tempting to do the statutory minimum, by changing standing orders without addressing how the IP panel will be appointed, the procedures or the contractual implications. But it is wrong to think that “it will never happen to us”. If there are serious disciplinary issues with one of the statutory officers, and a breakdown in trust and confidence, this can be very damaging to the authority and the last thing they will want is to have to make it up as they go along.
Finally there is every chance that the new procedures will be every bit as long winded and expensive as the old ones in practice. The substantive change, therefore, is that the IP’s views, unlike the DIP’s recommendations, will not be binding. There might have been an easier way of achieving this.
Graeme Creer is a consultant and Mark Leach is a partner in the Local Government team at Weightmans. Graeme can be contacted on 0151 243 9834 or This email address is being protected from spambots. You need JavaScript enabled to view it., while Mark can be reached on 0161 233 7372 or This email address is being protected from spambots. You need JavaScript enabled to view it..
