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Legislation suggests that the full council ought to be the final arbiter of lay-offs rather than the executive, argue Kirsty Cole and Judith Barnes Many councils will currently be considering restructuring proposals with a view to downsizing their workforce as part of a package of budget-reduction measures. Since these are likely to have an impact on service delivery, they would seem at first sight to be an area falling within the remit of the executive. However, a closer inspection reveals a raft of complexities between bits of legislation and, we suspect, the practice adopted by different councils in respect of staffing matters. In simple terms, the legislative framework underpinning the Local Government Act 2000 provides that unless a matter is expressly set out in regulations as not being the responsibility of the executive, nor a local choice function, then it will automatically be an executive function, under Section 13 of the Local Government Act 2000. However, the Local Authorities (Functions and Responsibilities) England Regulations 2000, as amended, expressly provides that the ‘power to appoint staff, and to determine the terms and conditions on which they hold office – including procedures for their dismissal – Section 112 of the Local Government Act 1972' is a non-executive function. This is a power vested in the council but which it may delegate to a committee, sub-committee or, indeed, to an officer. The question is, how widely drawn is reference to Section 112 of the 1972 Act and consequently, the 2000 regulations, intended to be? While guidance was issued on the Local Government Act 2000, there is no guidance which expressly relates to the treatment of staffing issues. Proposals may include changes to terms and conditions of employment, for example, redundancy and pay protection. Again, are these matters for a non-executive committee or for the executive? The appointment and dismissal of chief officers is prescribed by the Local Authorities Standing Orders (England) Regulations 2001. These regulations also provide that any dismissal of a senior officer – as defined by the regulations – is subject to an executive objection process. (Pic: Mike Flippo/Shutterstock) Dismissal would, in these circumstances, include dismissal by way of redundancy. Further, members are prohibited from the involvement in staff appointments and dismissals below deputy chief officer level, other than by way of appeal. A wider view is that decisions on the overall staffing structure must be an essential prerequisite to decisions on appointments and dismissal and that Section 112 of the 1972 Act – and paragraph I of the 2000 regulations – must therefore relate not just to individual decisions on appointment and dismissal but to the wider collective impact, including who approved the staffing establishment. Section 4 of the Local Government and Housing Act 1989 also needs to be considered in the context of major restructuring proposals. This expressly provides that it is the duty of the council's head of paid service to set out proposals for staffing of the council which include ‘the number of grades of staff required by the authority for the discharge of their functions', organisation of the authority's staff, and ‘the appointment and proper management of the authority's staff'. These proposals have to be considered not by the executive but by the council as a whole. This provision leads to the conclusion that, certainly in respect of any major restructuring proposals, those proposals should be put to the council as a whole for approval, unless staffing functions have been delegated under the constitution. Interestingly, member appeal mechanisms for staffing matters are a local choice function, so an appeal panel will normally be drawn from either the members of the council as a whole or from members of the executive depending where it has been designated in the council's constitution. Secondment of staff under Section 113 is also a local choice function. Looking at the legislative provisions in the round, our clear conclusion is that ultimately, it is the council which decides. This conclusion is drawn from a wide reading of Section 112 of the 1972 Act, and also Section 4 of the 1989 Act, both of which point to the council – or a committee or officer – and not the cabinet as the ultimate decision-maker. The executive can and should be involved in shaping ideas agreeing the overall direction, and making recommendations to the council, but the ultimate decision must be non-executive. As to terms and conditions, there is little doubt that these constitute a non-executive function and, given that councils are likely to be undertaking a wholescale review of such terms and conditions, they would be advised to consider establishing a bespoke staffing committee, or delegating such functions to the chief executive or chief officers to deal with, rather than referring them to the council for discussion and debate. Finally, what happens if a council has taken a different view and vested decision-making in its executive? The answer must be that the decision could be vulnerable to challenge by way of judicial review. There is a further risk that where such a decision results in redundancies, the basis on which the decision was made could be challenged, both in terms of failure to consult correctly or to dismiss fairly. Councils would be wise to avoid the risk of such challenge where such decisions are likely to be sensitive and controversial in any event. Kirsty Cole is deputy chief executive of Newark and Sherwood DC, and Judith Barnes is a partner and head of local government at Eversheds

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WHITEHALL

Are redundancies a matter for the council or executive?

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