LexisPSL Local Government, in partnership with Philip McCourt, provides a summary of the local government legal peculiarities involved in the appointment or dismissal of officers.
Discussion of employment issues in local government fall into three areas:
- normal employment law issues, such as those concerning discrimination, fair or unfair dismissal (including redundancy), TUPE etc
- contractual requirements, which will require consultation with national conditions of service except where local agreements have been made. In this scenario those will fall into one of three categories, being:
- Joint Negotiating Committee (JNC) terms for chief executives and chief officers
- other managers and staff under the single status (green book) conditions; and
- occupation specific conditions of service, such as those for teachers or firefighters
- those laws that are specific to local authorities concerning the appointment of staff and those more generally concerning decision-making as a local authority that impact on those decisions. These are contained in several sources but principally as part of mandatory standing orders, commonly referred to as an authority's employment procedure rules
The appointment of officers
The council is empowered to appoint such officers as it thinks necessary for the proper discharge by the authority of such of their or another authority’s functions as falls or is agreed to be discharged by them.
Every appointment of a person to a paid office or employment by the council is to be made on merit.
There are then regulations establishing various mandatory standing orders (procedure rules) giving effect to obligations or restrictions on delegation of authority to bring these principles into effect. These rules should be set out within a council’s constitution.
Statutory chief officers, chief officers, deputy chief officers and other officers
Local government employment rules differentiate between categories of officers. These include statutory chief officers, chief officers, deputy chief officers and other officers.
For example, (whilst it is commonplace for all posts) it is only a legal requirement for the appointment of chief officers or deputy chief officers to be subject to a role description and person specification and, where the appointment is not an internal process, that it must be subject to appropriate advertisement.
The statutory chief officers are the:
- Head of Paid Service (LGHA 1989, s 4)
- Monitoring Officer (LGHA 1989, s 5)
- Chief Finance Officer (LGA 1972, s 151)
- Director of Children’s Services (Children Act 2004, s 18)
- Director of Public Health (National Health Service Act 2006, s 73A(1)); and
- Director of Adult Social Services (Local Authority Social Services Act 1970, s 6(A1))
These are officers that the authority must have in place, some of which may be combined and some of which cannot, but they all have additional personal responsibilities. Added to this list might be the returning officer and electoral registration officer.
There are a number of other statutory officer roles that a local authority must have in place, such as a scrutiny officer, and in Wales, the democratic services officer, but these are not chief officer posts in their own right.
A ‘non-statutory chief officer’ is defined as:
- a person for whom the head of the authority's paid service is directly responsible
- a person who, as respects all or most of the duties of their post, is required to report directly or is directly accountable to the head of the authority's paid service; and
- any person who, as respects all or most of the duties of their post, is required to report directly or is directly accountable to the local authority themselves or any committee or sub-committee of the authority; but
excludes any person whose duties are solely secretarial or clerical or are otherwise in the nature of support services.
A ‘deputy chief officer’ is defined as a person who, as respects all or most of the duties of their post, is required to report directly or is directly accountable to one or more of the statutory or non-statutory chief officers. This definition is subject to the same exclusion concerning administrative and support staff.
These posts are subject to redundancy. A chief officer (or deputy chief officer if on JNC contracts) should be afforded the opportunity to make oral representations to the committee before the decision on redundancy is taken.
What are known as the governance statutory chief officers, the first three listed above being the head of paid service, the chief finance or s 151 officer and the monitoring officer, have (in England) additional statutory employment protection due to the nature of their role in having to ‘speak truth unto power’, which is not always welcome. These statutory provisions are adopted by authorities as mandatory standing orders but are also contractually reflected in the JNC conditions of service. The nature of that employment protection changed in 2015 with the Local Authorities (Standing Orders) (England) (Amendment) Regulations 2015, SI 2015/881, moving the involvement of an independent third-party in any proposed disciplinary investigation from the beginning of the process to the end. That was felt by many authorities to be a potentially expensive and retrograde step, failing to address the object of the mischief to be addressed in the LGHA 1989 and the Widdecombe Report. As a result, many authorities have adopted the amended mandatory standing orders but, as the previous and amending standing orders are not mutually exclusive, have also kept the previous provisions in their standing orders (employment procedure rules) and in those officers’ contracts.
Who makes the decision?
Where executive arrangements are in place, the appointment of staff, including their dismissal and the terms and conditions upon which they are appointed, is a function reserved to the Council. This means that these decisions are either taken by the Council itself, a Committee or an officer, although there are a number of exceptions to this introduced by the standing orders referred to above. The result of this is the following rules as outlined below.
Role of members
All appointments and dismissals in respect of staff positions that are not chief officers or deputy chief officers is the responsibility of the head of paid service (the chief executive). Members are not permitted to be involved in these decisions, except insofar as there are arrangements for an appeals committee for staff matters.
The appointment or dismissal of the head of paid service may only be made by a meeting of the full council, which may either be direct or as confirmation of a recommendation from a committee or sub-committee of council.
Delegated authority may therefore be granted by council to a committee or sub-committee or to the head of paid service, in respect of all other chief officers and deputy chief officers. Again, this may be authority to discharge the full function of making or confirming appointment, or dismissal, or be limited to making a recommendation to a full meeting of the council.
The designation of the posts associated with the statutory chief officers, especially the head of paid service, monitoring officer and chief finance officer, are usually set out in the council’s constitution as part of standing orders (commonly referred to as employment procedure rules). Unlike the head of paid service, there is no statutory requirement for the full authority to approve appointment or dismissal to statutory posts, but this is common practice in respect of the monitoring officer and chief finance officer posts across many authorities and is likely to also be a requirement in those councils’ constitutions.
Involvement of leader or elected mayor and cabinet under executive arrangements
Where an elected mayor or leader and cabinet executive arrangements are in place, they will be involved in the decisions to appoint or dismiss a chief officer and deputy chief officer in two distinct ways.
- where a committee or a sub-committee of the council is discharging, on behalf of the authority, the function of appointment or dismissal, at least one member of the cabinet must be a member of that committee or sub-committee
- before an offer of appointment or notice of dismissal is issued, the members of the cabinet must be informed of the prospective decision and the elected mayor/leader may make representations concerning their 'material and well founded' objection to the decision maker
The particular role and involvement of the Chief Executive (head of paid service)
The role of the chief executive in this process is threefold as they have to undertake distinct roles as head of paid service (HoPS). The HoPS:
- has the role of decision maker in posts below deputy chief officer (and as the responsible officer concerning the grant and supervision of exemptions from political restriction) (LGHA 1989, s 3 as amended by the Localism Act 2011)
- is considered to be the principal advisor on staffing matters to the council and therefore the appropriate committee or a sub-committee (except for where there would be a conflict of interest in respect of her own pay and conditions of service)
- has a responsibility to consider whether they should issue a formal HoPS report. The ‘section 4’ report informs the council of their proposals concerning:
- the manner in which the discharge by the authority of their different functions is co-ordinated
- the number and grades of staff required by the authority for the discharge of their functions
- the organisation of the authority's staff; and
- the appointment and proper management of the authority's staff
The full council is then required to consider those proposals. In effect however this formal power is seldom used, if ever, but is a blueprint for restructuring reports and the responsibilities of those involved.
Related issues that are not distinct to local authorities or employment matters have not been referred to in this article.
This article, written in partnership with Philip McCourt was originally published in LexisPSL Local Government. If you would like to read more quality content like this, then register for a free 1 week trial of LexisPSL.