Council
20 May 2015
New Procedures for dismissal of statutory chief officers
Wards: All
Report Authorised by: Chief Executive: Sean Harriss
Contact for enquiries:
[email protected]
Alison McKane, Head of Legal Services, Enabling, Tel: 020 7926 2353
Report summary
To approve changes to the Council’s Constitution relating to changes to arrangements for the
dismissal of statutory officers following new statutory provisions set out in the Local Authorities
(Standing orders) (England) (Amendment) Regulations 2015 which come into effect on 11 May
2015.
Finance summary
There are no financial implications arising directly from this report.
Recommendations
(1)
(2)
(3)
That the Officer Employment Procedure Rules contained in Part 3 of the Constitution
be amended as set out in Appendix 1 to reflect the requirements set out in the Local
Authorities (Standing Orders) (England) (Amendment) Regulations 2015.
That the Terms of Reference for the Investigating Committee be amended as set out
in Appendix 1
That the Council’s current Independent Members of Standards Committee be invited
to join the Independent Panel.
1.
Context
1.1
The current legislation provides that the Head of Paid Service, Monitoring Officer and
Section 151 Officer cannot be dismissed unless a Designated Independent Person (DIP)
has first been appointed to investigate and make a binding recommendation on disciplinary
action.
1.2 The Local Authorities (Standing Orders) (England) (Amendment) Regulations (the
Regulations) were made on 25 March 2015 and come into force on 11 May 2015.
1.3 The regulations remove the requirement for a DIP and provide that any decision to dismiss
the relevant statutory officer must be taken by full Council.
1.4 The Regulations require the Council before making such a decision to consider any
recommendations from an independent panel, the conclusions of any investigation into the
proposed dismissal, and any representations from the officer concerned before any
decision to dismiss is made.
1.5 The Council is required to incorporate the requirements of the Regulations into its standing
orders (the Officer Employment Procedure Rules) at the first ordinary meeting of the
Council after 11th May 2015. In Lambeth’s case this means that in order to comply with the
Regulations these amendments will need to be made at the Full Council meeting on 20
May 2015.
2.
Proposal and Reasons
2.1 The rationale for the proposed changes was that the existing DIP process was
bureaucratic and time consuming and often led to authorities making inflated severance
payments to senior officers in order to avoid the need to follow the DIP process.
2.2 DCLG wrote to a limited number of stakeholders in 2013 seeking views on draft
amendment regulations which would remove the requirement for a DIP.
2.3 The Local Authorities (Standing Orders) (England) (Amendment) Regulations were
made on 25 March 2015 and come into force on 11 May 2015.
2.4 The regulations remove the requirement for a DIP and provide that any decision to dismiss
the relevant statutory officer must be taken by the full Council.
2.5 The Council must consider any recommendations from an Independent Panel, the
conclusions of any investigation into the proposed dismissal and any representations from
the officer concerned.
2.6 The Regulations go on to provide that, in consulting the Independent Panel, the Council
“must invite relevant independent persons to be considered for appointment to the Panel,
with a view to appointing at least two such persons to the Panel”
2.7 “Relevant Independent Persons” are defined as an independent person who has been
appointed to the authority or, where there are fewer than two such persons independent
persons appointed by another authority.
2.8 They must be invited to join the panel in the following priority order:• An independent person appointed to the authority living inside the authority’s area
• An independent person appointed to the authority living outside the authority’s area
• Where the authority has appointed fewer than two independent persons, an independent
person appointed by another authority
2.9 The panel must be appointed at least 20 working days before the date of the Council
meeting at which the decision to dismiss will take place (although the regulations are silent
as to when the Panel must meet).
2.10 It is expressly provided that the panel constitutes an advisory committee under s102(4)
of the Local Government Act 1972. S102(4) of the Local Government Act 1972 provides
that such a committee:“may consist of such persons (whether members of the appointing authority or
authorities or not) appointed for such term as may be determined by the appointing
authority or authorities”.
2.11 The Council therefore has the option to constitute a panel comprising wholly
independent persons or a panel comprising a mix of independent persons and elected
members.
2.12 It is proposed that the panel should comprise a mix of independent persons and elected
members, and as such the Committee will need to reflect political balance. This is set out
in Section 13(4)(e) of the Local Government and Housing Act 1989 which provides that the
“political balance rules” set out in Section 15 of that Act apply to any advisory committee or
sub-committee appointed under S102(4) of the 1972 Act.
2.13 It is also clear from section 13 of the 1989 Act that those members of the panel who are
not elected members have voting rights. They would therefore be caught by the code of
conduct requirements including the requirement to complete a Register of Interests.
2.14 Further work will be needed to be undertaken to determine the exact role the panel
should play in the disciplinary process for relevant statutory officers to ensure that the
process complies with employment legislation and good employment practice.
2.15 The regulations simply require the Council to take into account “any advice, views or
recommendations of the panel” as well as the conclusions of any investigation into the
proposed dismissal and any representations from the officer subject to the disciplinary
proceedings before a vote is taken on whether or not to approve the dismissal.
2.16 The proposals set out in this report recommend that the Council constitute the
Independent Panel to effectively fulfil the role of the Investigating Committee. Its remit
would then remain broadly as set out in the Constitution for other Chief Officers within the
Council, ie it could make recommendations in relation to the dismissal of the relevant
statutory officer to the Council.
2.17 The procedures in respect of non statutory Chief Officers will remain unchanged and will
continue to be dealt with through the Investigating Committee which gives further merit to
constituting the Independent Panel as an Investigating Committee so that the disciplinary
procedures for all Chief Officers are broadly in line.
2.18 In the case of the Chief Executive, the right for a Designated Independent Person to be
appointed is preserved through the JNC terms and conditions of employment for Chief
Executives notwithstanding the introduction of these Regulations. However this is not the
case in respect of the Monitoring Officer and Section 151 Officer. The JNC terms and
conditions for Chief Officers provide as follows:“Those authorities wishing to incorporate the role of an independent third party, in an
advisory or decision making capacity, may refer for guidance to paragraph 16 in the Chief
Executive Conditions of Service. This may be specifically appropriate where the officer
holds a post with statutory accountabilities”.
It follows that members must preserve the right to the appointment of a designated
independent person in the case of the Chief Executive unless and until the terms and
conditions of employment are changed but are not required to do so in the case of the
Section 151 Officer and Monitoring Officer.
3.
Finance
3.1
There are no capital or revenue implications arising as a direct result of this proposal.
4.
Legal and Democracy
4.1 The Council is required to incorporate the requirements of the Regulations into its
standing orders (the Officer Employment Procedure Rules) at the first ordinary meeting of
the Council after 11th May 2015. In Lambeth’s case this means that in order to comply with
the Regulations these amendments will need to be made at the Full Council meeting on 20
May 2015.
5.
Consultation and co-production
5.1 The relevant Statutory Chief Officers whose terms and conditions of employment are
affected by the new statutory requirements will be fully consulted in relation to the changes
prior to any changes being made to their contractual terms and conditions of employment.
6.
Risk management
6.1 The Council is required by legislative provision to amend its Constitution for the reasons
set out above.
7.
Equalities impact assessment
Not applicable to this report
8.
Community safety
There are no community safety mplications arising from this report
9.
Organisational implications
The following sections must be considered, but are optional and each should be deleted
if not relevant to the report. If there are no organisational implications, state “None”.
9.1
Environmental
None
9.2
Staffing and accommodation
See paragraph 5.1 above. Further work is required to ensure that the Council’s
disciplinary procedure for Chief Officers is in line with any subsequent guidance issued
in relation to the new Regulations and that any amendments to the procedure are as
close as possible to current contractual arrangements.
9.3
Procurement
None
9.4
Health
None
10.
Timetable for implementation
10.1 The proposed changes to the Council’s Constitution will be made once approved by
Council and the amended Constition will be published on the Council’s website as soon as
possible after the changes have been made.
10.2 If subsequent amendments are required as a result of any statutory or other guidance
issued in relation to the Regulations then these will be brought back for approval by
Council in due course.
Audit trail
Consultation
Name/Position
Guy Ware
Martin Crump
Alison McKane, Legal
Services
Wayne Chandai, Democratic
Services
Nana Amoa-Buahin
Constitutional Working Group
Dave Burn
Mark Hynes
Lambeth
cluster/division or
partner
Strategic Director
Enabling
Enabling: Integrated
Support – Financial
Planning &
Management
Enabling: Integrated
Support
Enabling: Corporate
Affairs
Director, Co-operative
Development
Head of Democratic
Services and Scrutiny
Director of Corporate
Affairs
Report history
Original discussion with Cabinet Member
Report deadline
Date final report sent
Report no.
Part II Exempt from Disclosure/confidential
accompanying report?
Key decision report
Date first appeared on forward plan
Key decision reasons
Background information
Appendix
Date Sent
Date
Received
Comments in
para:
12/05/15
12/05/15
06/05/15
06/05/15
3
06/05/15
06/05/15
4 and
throughout
06/05/15
06/15/15
06/05/15
06/05/15
11/05/15
06/05/15
11/05/15
11/05/15
06/05/15
11/05/15
n/a
n/a
11/05/15
24/15-16
No
No
n/a
n/a
The Local Authorities (Standing Orders)
(England) (Amendment) Regulations 2015
Appendix One – officer employment
procedures
Appendix two – Investigating committee