Every local authority will have to take a report to its first
Council meeting after its Annual Meeting in May 2015, to amend its
Standing Orders to make changes to the procedure for disciplining
and dismissing senior officers.
This follows from the publication of finalised new regulations
on local authorities' disciplinary procedures for removing a senior
officer. The Local Authorities (Standing Orders) (England) (Amendment)
Regulations 2015 (SI 2015/881) require local authorities to
amend their Standing Orders so incorporate the new arrangements for
taking disciplinary action against the most senior council staff.
This modification must be made by the first ordinary council
meeting held after the 7 May 2015 elections.
Consultation on draft regulations
Early in 2013 DCLG wrote to a limited number of stakeholders
seeking their views on draft Amendment Regulations that would
remove the requirement for a Designated Independent Person (DIP) to
investigate allegations of misconduct by senior local government
officers in England.
The Government's rationale for these changes was that the
existing DIP process was bureaucratic and time-consuming, and that
it often led to authorities making inflated severance payments to
senior officers in order to avoid taking the costly DIP route.
It therefore proposed that any decision to dismiss top staff was
to be taken by full Council, and that full Council would be
required to consider any report about the proposed dismissal which
a panel drawn from members of the Council’s Independent
Remuneration Panel thought fit to put before the council.
Respondents raised concerns about the dilution of the protection
of statutory officers, who may be required to make unpopular
statutory reports, and about the skill set of the panel members,
and the detailed prescription about how the panel might operate. It
was suggested that the Independent Persons appointed under s.28(7)
of the Localism Act 2011 would be better placed than members of the
IRP to fulfil the role of the proposed new panel, given that their
role related to the consideration of disciplinary
The Government has broadly accepted this suggestion, and it has
also accepted that the proposed process should be simplified.
The finalised Regulations now provide that where the final
decision to dismiss any statutory officer (and not just the Head of
Paid Service as now) must be taken by full Council, before taking
that decision, Council must invite at least two Independent Persons
to be members of a Panel, and Council must take into account any
recommendation of that Panel before taking a final decision to
The invitations should sent in accordance with the following
- an Independent Person who has been appointed by the council and
who is a local government elector,
- any other Independent Person who has been appointed by the
- an Independent Person who has been appointed by another council
The Regulations provide that the Panel is to be a committee of
the authority and so it is subject to all the legal requirements
for committees, including the proportionality rules.
Presumably it is not intended that full Council itself carries
out the disciplinary hearing so this will have to be delegated from
Council to the relevant committee, sub-committee or officer –
this could, one supposes, be the same Panel, although the
regulations are woefully unclear who will have responsibility for
doing so – and then report to full Council with their
recommendation, which would include the views of the Independent
To ensure that the new process will not involve high costs, the
Regulations limit the remuneration that should be paid to
Independent Persons on the panel to the level of the remuneration
which they would normally receive as an Independent Person in the
conduct regime, i.e. a modest annual allowance or small meeting
Amendment of Standing Orders
Local authorities must now modify their Standing Orders to give
effect to the new arrangements.
Whilst the Monitoring Officer may have delegated powers to amend
the Constitution to take account of changes of fact and law, this
is required to be incorporated in Standing Orders, and under the
Local Government Act 1972, only "the authority" may change Standing
So Council must approve the changes. The Regulations require
that this be done at the first ordinary Council meeting held after
the 7 May 2015 elections, so it could be swept up into any other
constitutional alterations required.
It would also be sensible for authorities to have a word
with their Independent Persons about their new role, ensure that
they know what will be required and are happy to carry this out,
and provide them with a briefing as to the roles of the three
statutory officers to whom this will apply.
Simpler and cheaper?
DCLG considers that these changes will make the performance
management of the most senior staff both more effective and
efficient with potentially lower costs in the case of departures or
dismissals than currently.
However, there was never any empirical evidence that the cost of
dismissing statutory officers under the DIP procedure was any
higher than the cost of dismissing non-statutory officers, and
considerable anecdotal evidence that high compensation costs
resulted from the employing authority not having grounds for
dismissal which would survive in an Employment Tribunal.
The new Regulations will give rise to a number of
- The current DIP process is incorporated into statutory
officers' contracts of employment, so authorities will need to
agree variations to such contracts if they are not to find
themselves complying with the new Regulations, but in breach of
- The Regulations only apply to appointment and dismissal of a
statutory officer and not to disciplinary action short of
dismissal, so providing only limited protection for statutory
- The Panel is required to be a committee of Council, so it is
subject to normal proportionality rules. The Regulations provide
that the authority does not have to appoint more than two
Independent Persons, but may do so if it wishes. But, as a
committee, the inclusion of at least two Independent Persons as
voting members of the Committee would require a minimum membership
of four members of a majority party to one other member of Council,
unless Council resolves by a "nem con" vote to depart from
proportionality. So the Independent Persons will ordinarily be very
much a minority voice on the Panel, comprising only two out of
seven members of the committee.