Dismissing statutory whistleblowers in local government
The statutory protection for local authorities’ 'whistleblowing' post holders has been watered down but there are still some very loose ends.
For some time, former Communities and Local Government Secretary Eric Pickles attempted to water down the statutory protection for local authorities’ “whistleblowing” post holders, the Head of Paid Service, the section 151 (Chief Finance) Officer and the Monitoring Officer. This has now happened, but there are still some very loose ends.
All these officers have a personal statutory responsibility to blow the whistle by issuing a formal report if things have gone, or are likely to go, wrong. The Head of Paid Service looks after staffing and organisation, the Monitoring Officer illegality and maladministration, and the section 151 Officer finances and risk. “Speaking truth to power” does not make you popular, so these officers have had special protection from disciplinary action. Beyond suspension on full pay for a limited period of two months, disciplinary action cannot be taken unless it is recommended by a Designated Independent Person (“DIP”) appointed to investigate.
This can be difficult to work with. The officers are also protected by their terms and conditions of employment and the general principles of employment law, including protection from victimisation, discrimination and harassment. The three sets of process requirements do not dovetail easily. The complexity, cost and timescale of the DIP process, and the fact that ultimately the DIP decides what action the Council can take, has led to the feeling that it is impossible to dismiss a protected officer for anything short of the most blatant gross misconduct. There is some truth in this. Unfortunately, a common response has been to make life so unpleasant for the officer that he or she falls ill, claims constructive dismissal and harassment and leaves with some kind of pay-off under a compromise agreement.
This has been reined in by an appreciation that such payments must be commensurate with the risk to the authority, and a variety of transparency rules ensuring that the details of the pay-off are made public. But fuelled by local dissatisfaction, some bad press and compromise agreement scandals elsewhere in the public sector, Mr Pickles announced plans to scupper the “bumper payoffs”. A November 2013 consultation paper proposed that in England the protection would be scrapped completely, but this was widely criticised for obvious reasons. The next idea was to allow the officer to ask for an independent panel to be established, to make recommendations. The panel would be drawn from the panel of independent people who recommend changes to elected members’ allowances and expenses. Local government representatives pointed out, though, that these individuals were unlikely to have the expertise, or the appetite, to form an opinion on an employment dispute. It is common for DIPs to be senior local government employment lawyers, for example. The next, and final, idea – pushed through at a rate of knots, made law the day before Parliament was prorogued, and to take effect on the 11 May – draws the panel from the independent persons who can be consulted about complaints against members under the Localism Act 2011. These individuals are certainly independent, although they are likely to have worked directly with the monitoring officer, and there is a statutory process for appointing them. They will probably be more amenable to the task, but they will not be employment law experts either.
The detail is in the Local Authorities (Standing Orders) (England) Regulations 2015/881. First, the principle that only full Council can decide to dismiss the Head of Paid Service is extended to the other two protected officers. This decision must be taken before notice of dismissal is given. Secondly, the DIP process is scrapped. Thirdly, the authority must alter its standing orders at its first meeting after the 11 May, presumably the annual meeting. The changes require the following procedure to be followed before a protected officer can be dismissed. The authority must invite “member conduct” independent persons (“IPs”) to be appointed to a Panel. If the authority has fewer than two IPs, the authority must extend the invitation to one or more IPs from another authority. If more accept the invitation than are needed, the appointments must give priority to IPs of the authority who are on the authority’s electoral roll, then to IPs of the authority who are not, then to other authorities’ IPs. At least two of those who have accepted must be appointed, but there is no limit. They can be paid, but no more than they would receive for their Localism Act work. The appointment must be made at least 20 days before the decision to dismiss. At the dismissal meeting, the authority must take into account any advice, views or recommendations of the Panel as well as (rather obviously) the conclusions of any investigation and any representations made by the officer.
There are some loose ends here. This process only applies to dismissal. Disciplinary action short of dismissal is not caught. Nor is action which is of a disciplinary nature, but not treated as such, and which amounts to constructive dismissal. So a canny authority could remove the statutory designation, then dismiss under the rules that apply to other staff. Conversely, the monitoring officer and chief finance officer can now only be dismissed on non-disciplinary grounds, such as redundancy following restructuring, by a full meeting of the authority.
The relevant terms and conditions of employment still apply. These contain detailed agreed disciplinary procedures which, certainly in the case of Heads of Paid Service employed on the Chief Executives’ JNC conditions of service, cross refer to the DIP process. Whether these now fall away, or whether and when the Local Authority Employers will agree to change them, are difficult questions.
There will almost always need to be a formal investigation and a disciplinary hearing before a decision to dismiss can be taken. It is not easy to arrange this kind of investigation in-house, and it is not cheap to hire someone to do it. Members who think that they can now dismiss their chief executive in short order and at little cost may well be disappointed.
Then there is the Panel of IPs. First, someone – full council or a committee after a preliminary investigation - has to decide to first how many and which IPs to invite to the Panel, and then how many and which to appoint. Secondly, they only have to issue two invitations. There cannot be a single-person Panel, so there is a problem if either invitee declines. It is not wholly clear from the Regulations whether the authority must continue issuing invitations until they are able to appoint, but this must surely be the case. Thirdly, a Panel of two will be problematic. They may disagree, and if they do, the individual appointed to chair the Panel, by the authority or the Panel itself, will have a casting vote, so this appointment might become rather important. An odd number is always better.
Fourthly – and this is a real curiosity – there is nothing in the Regulations to indicate whether the Panel can include anyone other than the IPs. The new mandatory standing orders say that the authority “must invite” IPs “to be considered for appointment to the Panel” and “must appoint” at least two of those who accept the invitation. But “the Panel” is defined as “a committee appointed by the authority under section 102(4) of the Local Government Act 1972 for the purposes of advising the authority on matters relating to the dismissal of relevant officers of the authority” That subsection creates one of the rarest creatures in the local authority jungle, the “advisory committee”. Few practitioners can recall having seen one. An advisory committee can only advise. Its members need not be members of the authority and non-members can have voting rights. So a Panel can just comprise IPs. But there is nothing to stop the authority appointing a panel comprising both IPs and elected members. If it does, the members of the administration group will be able to outvote the opposition members and the IPs. Under section 15 of the Local Government and Housing Act 1989, the proportionality principle that a group with a majority of members on the authority must have a majority on the Panel (including Panel members who are not authority members) takes precedence over the principles that the political balance amongst all the appointments made, and then on the Panel itself, must reflect the overall balance on the authority (this time excluding Panel members who are not authority members). The maths will be mind-boggling. It remains to be seen whether this will become popular. It was probably not what the Government intended, though. There are no clues in the explanatory note to the Regulations, but Local Government Minster Kris Hopkins told Parliament that the Regulations will “require the council to consider any advice from a panel of independent persons”. Ironically, the outcome may make it even easier for a political administration to dismiss a protected officer than he thought.
All these loose ends are fertile grounds for challenge and appeal. They could easily make it just as difficult to dismiss a statutory officer as it was before. Of course, if Mr Pickles and Mr Hopkins had approached this exercise more collaboratively it might have been possible to produce something less messy, but that was never going to happen.
If these protections are really a whistleblowers’ charter, a quid pro quo for the duty to report, monitoring officers and section 151 officers may spot another irony. Statutory reports from Heads of Paid Service are almost as rare as advisory committees. If they have the kind of problem that a report might address, a statutory report would not solve it, and they have no personal authority to stop things happening. The other two are the real whistleblowers. But the target of the changes, and all the invective and anecdotal evidence, has been the chief executive. Might it not have been more sensible, given the importance attached to public sector whistleblowing, simply to have scrapped the concept of the Head of Paid Service? Just a thought …