The latest round of local government reorganisation, which takes effect in April 2009, throws up a range of employment law issues. Many of them are generic, but as we will see some are unique to this particular rationalisation programme.
What will happen to employees of councils that will cease to exist next year – defined euphemistically in The Local Government Staffing Regulations 2008 as “predecessor” councils? The regulations provide that they will be treated in exactly the same way as if their jobs had been the subject of a transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). In other words their employment will be automatically transferred to the single tier council with all their terms and conditions intact. Without this provision there would have been a risk that some posts in core administrative functions would not have been protected by TUPE.
That is not the end of the story, because the application of TUPE will not always be straightforward, particularly in the case of the more complex reorganisations in Bedfordshire and Cheshire, where the functions of some district councils will be split between two single tier councils. The June 2008 Guidance on Staffing Issues prepared by the Department for Communities and Local Government calls this disaggregating, and offers some pointers as to how the staffing implications should be addressed.
Leaving aside the additional problems of disaggregating, TUPE is all very well if there is a close correlation between the posts in the predecessor councils and the new council. Given that part of the motivation behind this reorganisation is to save money by rationalisation, this will not always be the case. Redundancies will arise not only at predecessor councils, but at “preparing” councils – ie, councils that become the new single tier authorities – where staff have to compete for their own or new jobs.
At the top of the staffing tree, the position is further complicated by the requirement to recruit heads of paid service of the new councils by open competition. The guidance suggests that this approach should also be extended to other senior management board posts, leading to the possibility of redundancies even where the underlying post is preserved.
The Government has resisted establishing a detailed staffing scheme. With the exception of special provisions in the staffing regulations for chief officers, the redundancy process is down to each local authority to manage. The guidance “strongly encourages implementation executives and shadow councils to agree with their affected authorities and local trade union representatives’ protocols to enable them to establish quickly, where they have not already done so, how staffing issues are to be handled”.
Legal requirements for consultation
Both TUPE and the Trade Unions and Labour Relations (Consolidation) Act 1992 (TULRCA) contain statutory consultation requirements for consultation, the former triggered by plans for a TUPE transfer, and the latter by proposals for at least 20 redundancies over a 90-day period. Both sets of requirements are probably already engaged.
In practice, given the complexity of the process and the long lead times, timing is not likely to be a problem: the minimum consultation period under TULRCA is 90 days. But those involved will need to be aware how the consultation that will inevitably take place to manage the process will map onto the somewhat mechanistic requirements of TUPE and TULCRA which, unlike the guidance, seek to establish a universal template for the way collective consultation should be conducted. It will also be necessary to consider the relationship between collective consultation on redundancy, and the obligation to consult with employees individually which is inherent in the right not to be unfairly dismissed.