Title

It has taken the Ministry of Housing, Communities and Local Government (MHCLG) a long time to update the Government's guidance on staffing issues in respect of local government reorganisation.It landed on 16 July, four months after the order that splits Surrey into two, and more than two months after their shadow councils have begun to tussle with many the thorny issues related to staffing.Was the wait worth it?The guidance has grown from a little more than 30 pages in the previous edition of June 2008, to 40 pages, but has also spawned an ‘overview' of three pages.A major change between 2008 and now is the sheer number of councils whose areas will be split.Apart from Gloucestershire, every county council is split between at least two successor authorities. We might wonder why the guidance continues to give so much prominence to ‘continuing councils' when MHCLG officials have confirmed that Gloucestershire will not be a continuing council.Decisions are still awaited on Peterborough and Cambridgeshire and West Sussex, so the concept might still be relevant in those areas.By my reckoning, there are now 28 districts being split between two or three successor unitaries, even more than the number of county councils that face dismemberment.Yet the impact of the Government's decisions on district councils seems to have been added as an afterthought. Only the overview touches on this and says merely: ‘Districts may also be split'.The guidance spends much time dealing with arrangements for social care and public health, including a whole page on disaggregating and aggregating employees in those services, but there is no reference at all to disaggregating teams who work on elections, waste collection, planning or, in those districts that have housing revenue accounts, council housing.The generic guidance on disaggregation that applies to both county and district councils has not shifted its thinking from 2008 or drafts that were in circulation last year.As I pointed out in a previous article in The MJ, the Local Government (Structural and Boundary Changes) (Staffing) Regulations 2008 provide that ‘the transfer of functions from a predecessor council to a single tier council… shall be treated for all purposes as a relevant transfer within the meaning of the Transfer of Undertaking (Protection of Employment) Regulations 2006 (TUPE).For now, councils whose areas are split between two or more unitary authorities will need to look carefully at the legislation and case law rather than relying unquestioningly on MHCLG's non-statutory guidance.In other words, on vesting day staff are to be transferred from current councils to new unitary councils in accordance with TUPE on their existing terms and conditions. This is an important and valuable protection for staff in councils that are being reorganised.But the guidance continues to take the approach that ‘the employment contracts of employees of a predecessor council in post immediately before the reorganisation date shall, on that date, transfer to one or other of the new single tier councils'.Paragraph 4.6.6 refers to taking legal advice ‘as to how the legislation and case law may apply in individual circumstances' and there are other references to taking such advice ‘in light of case law concerning TUPE'. But the guidance does not mention by name the 2020 ruling by the Court of Justice of the European Union (CJEU) in the case of ISS Facility Services NV v Govaerts and Atalian NV (the ‘Govaerts' case).The ruling was that a full-time employment contract can be split between multiple employers when a TUPE transfer involves multiple ‘transferees'. A cleaning contract was divided between two different companies and the CJEU ruled that the split should be in proportion to the tasks performed for each company.How can MHCLG assert confidently in the guidance that every employee will be transferred to only a single successor unitary? Why did the Conservative Government issue a consultation on ‘Smarter regulation: employment law reform' in May 2024 that proposed changing the TUPE regulations that would have counteracted the impact of Govaerts?The change would have clarified ‘that an employment contract should only be transferred to one employer and should not be split between multiple employers'.More than 26 months later, the Department for Business, Innovation, Science and Trade (as it is now known) is still ‘analysing your feedback'.If the Government wished to put the position beyond doubt, there is still time to pursue the proposals of May 2024, either by making general amendments to the TUPE Regulations or by making specific provision for local government reorganisation in an updated version of the 2008 Staffing Regulations.For now, councils whose areas are split between two or more unitary authorities will need to look carefully at the legislation and case law rather than relying unquestioningly on MHCLG's non-statutory guidance.Ian Miller is chief executive of Wyre Forest DC. He writes here in a personal capacity

Title

REORGANISATION

Getting staffing right in LGR

By Ian Miller | 26 August 2026

Popular articles by Ian Miller

SUBSCRIBE TO CONTINUE READING

Popular articles by Ian Miller