Discipline and dismissal of senior officers in local authorities
This article looks at local authority discipline and dismissal procedures for senior officers, and the involvement of councillors in other disciplinary action.
Action against the head of paid service, monitoring officer and chief finance officer
The Local Authorities (Standing Orders) (England) Regulations 2001 (SI 2001/3384) set out the steps to be taken when disciplinary action is contemplated in the case of a council's head of paid service, monitoring officer or chief finance officer in England. The procedure in Wales is governed by the Local Authorities (Standing Orders) (Wales) Regulations 2006 (SI 2006/1275). Disciplinary action for these purposes includes any proposal to dismiss an officer for a reason apart from redundancy, permanent ill health, infirmity of the mind or body, or failure to renew a contract of employment for a fixed term unless the authority has undertaken to renew the contract.
Model disciplinary procedures and guidance for both England and Wales are included as appendices to the Joint Negotiating Committee for Local Authority Chief Executives conditions of service handbook. The Joint Negotiating Committee for Local Authority Chief Officers handbook states that these can be used as a reference guide in relation to disciplinary action against other chief officers.
The Regulations for England were amended in May 2015 to bring in a requirement for a panel of at least two independent persons to advise on dismissal, replacing the previous procedure, which required the authority to appoint a designated independent person to make a recommendation on disciplinary action.
Authorities were required to amend their standing orders to incorporate the new procedure and remove provisions relating to the old procedure. Authorities should be aware that, even though it is removed as a statutory process, the requirement to appoint a designated independent person may still be incorporated into senior officers' contracts
The dismissal advisory panel procedure (England)
The authority must appoint a panel, made up of at least two independent persons, to advise on the dismissal of the head of paid service, monitoring officer or chief finance officer. The definition of "independent person" for these purposes is someone appointed under s.28(7) of the Localism Act 2011.
The dismissal of one of these protected senior officers can take place only if approved by a vote of the authority at a meeting, taking into account:
- any advice, views or recommendations of the panel;
- the conclusions of any investigation into the proposed dismissal; and
- any representations from the relevant officer.
The panel must be appointed at least 20 days before the relevant meeting. The new procedure applies only to dismissal, not to disciplinary action short of dismissal.
The Local Government Association (LGA) has said (in its Employment relations advisory bulletin: no.624) that it does not envisage that the panel would be able to carry out a disciplinary investigation itself; instead it would need to appoint someone independent to carry out that role. Therefore something similar to the designated independent person process may still take place in practice. The LGA points out that the designated independent person process (see below) will be incorporated in some senior officers' contracts and that this will not be affected by the new statutory procedure. The advisory bulletin gives more detail of the new procedure and how it may fit with existing Investigatory and Disciplinary Committee and designated independent person procedures.
The designated independent persons procedure (Wales)
The Local Authorities (Standing Orders) (Wales) Regulations 2006 still provide that no disciplinary action can be taken in respect of the head of paid service, monitoring officer, chief finance officer or head of democratic services other than in accordance with a recommendation in a report made by a designated independent person.
The independent person is someone agreed between the local authority and the officer to be investigated or, by default, someone appointed by the Welsh Ministers.
The designated independent person has the power to direct that:
- the authority terminate any suspension of the relevant officer;
- any suspension continue after the expiry of the original period;
- the terms of the suspension be varied; or
- no steps (by the authority or any of its committees, sub-committees or officers) towards disciplinary action or further disciplinary action against the relevant officer, other than steps taken in the presence or with the agreement of the relevant designated person, be taken before a report is made to the authority.
The independent person also has the power to inspect documents relating to the conduct of the relevant officer and to require any officer of the authority to answer questions concerning the conduct of the relevant officer.
The independent person is required to make a report to the authority stating whether the evidence that they have obtained supports any allegation of misconduct against the officer, and, if so, the extent to which it does, and recommending any appropriate disciplinary action to be taken against the officer. No later than when the report is made to the authority, the independent person must send a copy of it to the officer.
The employing authority is required to pay the designated person's remuneration and any costs incurred in connection with the discharge of their function as such.
Dismissal of statutory officers
The Children's Act 2004 established director of children's services and director of adult social services as statutory offices. The Secretary of State has power to remove such individuals by order as they think appropriate.
The Court of Appeal has established (in R (on the application of Shoesmith) v OFSTED & ors  IRLR 679 CA) that the Secretary of State and the relevant local authority must act procedurally fairly when removing an individual from the office of director of children's services and employment with the council.
In consequence of a critical report by Ofsted into the arrangements for child safeguarding in the London Borough of Haringey, the Secretary of State issued a direction removing Ms Shoesmith from the post of Director of Children's Services and appointing another named individual to the position. Following a short disciplinary process, Haringey dismissed Ms Shoesmith because of the direction of the Secretary of State and a breach of trust and confidence, without compensation or notice.
Ms Shoesmith sought judicial review of the various processes and appealed against an initial finding by the High Court that the processes had been conducted fairly. The Court of Appeal upheld the appeal.
In respect of the processes adopted by the Secretary of State, the Court said that he did not afford Ms Shoesmith the opportunity to put her case based on the content of the Ofsted report before taking a decision and, as a consequence, she was denied the elementary fairness that the law requires.
In respect of the processes adopted by her employer, the Court said that Haringey's decision to dismiss Ms Shoesmith was unlawful as it had been based on directions of the Secretary of State that had been held to be unlawful and void.
Involvement of councillors in disciplinary action
The Local Authorities (Standing Orders) (England) Regulations 2001 (SI 2001/3384) regulate the involvement of councillors in decisions relating to disciplinary action against and the dismissal of staff and provide that councillors are not permitted to be involved in these processes in relation to staff below the level of deputy chief officer (apart from political assistants and mayors' assistants).
The Regulations provide that disciplinary action or dismissal of staff below the level of deputy chief officer (apart from political assistants and mayors' assistants) should be delegated to the head of paid service or their nominee. In practice, authority is actually delegated to managers within individual departments as defined in local disciplinary procedures.
The Regulations mean that councillors generally cannot get involved in any disciplinary or dismissal decisions other than those involving staff covered by the model procedures for chief executives and chief officers.
However, guidance issued to local authorities on the Local Government Act 2000, New council constitutions: guidance to English Authorities, stated that, while there are limits on councillors' involvement in dismissal or disciplinary action, "this does not preclude the possibility that officers' contracts could include a right of appeal to members against dismissal or disciplinary proceedings where this forms part of the procedures". In practice, many authorities' procedures now do not include an appeal to members.