The Government’s programme of local government reorganisation (LGR) is underway, with a decision already made for Surrey to move to a two-unitary authority model.

Many of the queries received from our clients so far relate to employment law matters and we have discussed some of the key issues in our bitesize webinar.

The key legislation for unitarisation is set out in the Local Government Public Involvement in Health Act 2007, and the regulations that have been made under that.

The Local Government (Structural and Boundary Changes) (Staffing) Regulations in 2008 make it clear that the Transfer of Undertakings (Protection of Employment) Regulations 2006 (known as TUPE) would be deemed to apply on unitarisation, even though the wording of the TUPE Regulations do not necessarily on their face apply.

The position does remain unclear however, until we know what ministers are going to determine in respect of the current LGR process, as there is an indication that a ‘continuing authority’ model may be applied.

This means that an authority continues in the way that it has done previously, albeit with the need to consider where there might be some duplication of roles and the differences that will come into effect because of an amalgamation of entities bearing that same geographical footprint. It is therefore difficult to give any clear guidance on the application of TUPE to unitarisation at this stage as it will differ depending on the new unitary authorities to be put in place and ministers’ approach.

Despite this, there are practical things that existing authorities can start doing now and human resources teams can audit the workforce currently in place to ensure that its records are up to date. However, this does come with a health warning. Authorities must be careful about making any particular changes in advance of a potential transfer, because if TUPE is deemed to apply to unitarisation, making changes to a workforce in anticipation of a transfer can be unlawful.

Key questions for local authorities to consider now are:

• What staff have we got?
• What do our staff do?
• Where have we got people carrying out particular functions?
• What are they doing that might have differed from their original job descriptions and things that they were employed to do?

A general audit as part of an authority’s due diligence processes will help to understand the staffing levels and challenges they have now, so that they can start to think about what might be required in the future.

A particular point to consider is duplication of existing roles in the workforce and what the Authority requires now, with this being an opportunity to tidy up the existing operation (where this can legitimately be done without it being linked to a potential TUPE transfer).

We recommend that authorities think about employees who need to be managed from the point of view of current performance and capability, and work on those carefully and diligently in accordance with all the correct legal processes. This will avoid bringing employees whose employment might have ended earlier across to any new unitary authority. Care must be taken to ensure that the authority is not taking any steps solely because there might be a transfer, because that could be unlawful should TUPE apply. Pure performance issues could however be managed in their own right.

The same applies to issues of ill health. There could be staff who have had long term sickness absence at the authority, and this may be an opportunity to look at this issue across the organisation and identify whether any steps should be taken properly and lawfully in accordance with the authority’s own capability management procedures for ill health.

Authorities could also be having good communications with employees now and ensure that relationships with relevant trade union bodies are as good as they can be, as they will be a pivotal part of any negotiations in the future about changes to terms and conditions or redundancy processes that may need to take effect in any reorganised entity. A positive relationship with the trade unions now will only stand you in good stead for the future.

We have a recorded a bitesize webinar to explore these issues in more detail. To watch the webinar recording, please follow this link.

If you have any questions on the matters raised above, please do contact Sonya O’Reilly or Claire Jones by e-mail sonya.oreilly@birketts.co.uk or Claire.jones@birketts.co.uk.