NORTHAMPTONSHIRE COUNTY COUNCIL - UP-DATE JANUARY 2011
As I have explained before, the Council’s move to seeking individual agreement to the new terms and conditions still meant that they would need to enter into a formal 90 day consultation period with the unions. This is a legal prerequisite which then allows possible “termination and re-engagement” at a later stage. This process was formally started on 1st October 2010 where the Council stated its intention was still to reach a collective agreement. Given the fact that no collective agreement had been reached previously the GMB approached this consultation with a certain amount of scepticism as to the Council’s real intentions as I do not believe either side seriously believed a collective agreement would be forthcoming. Between the 1st October and the 14th December there were six consultation meetings. At the first two meetings the unions made a dozen proposals that may have made the package more acceptable to their members. It soon became clear that the Council were not really listening to our proposals but instead came back in writing on the 2nd December with some counter proposals of their own after completely dismissing the unions arguments. Essentially these boiled down to only four concessions as follows: -
1) To extend the period of pay protection to 5 months in total (1st April to 31st August 2011)
2) To extend the period of pay protection for nursery nurses who suffered due to a reduction in contract hours to 5 months (1st April to 31 to August 2011)
3) Protection of the Essential Car User lump sum for those who travel 3600 miles or more for 5 months (1st April to 31st August 2011)
4) Protection of weekend enhancements for 5 months (1st April to 31st August 2011)
All of the above were dependent on a collective agreement being reached, however the Council stated that if agreement was not reached then employees could benefit from these concessions if they voluntarily agreed to the new terms and conditions on an individual basis.
On the same day 2nd December the Council wrote to Head Teachers advising them that “we remain unable to reach a collective agreement” and that dismissal and re-engagement “now appears increasingly likely”. By sending out this advice on the same day I believe this clearly demonstrates that the Council never had any intention of reaching a realistic agreement.
The GMB wrote to the Council on the 9th December stating that in our view the consultations were not in any way meaningful and that the Council was simply carrying out its legal obligations prior to imposing individual changes to terms and conditions. On the basis that these latest concessions were still worse than the original Best and Final Offer taken off the table in June we made it clear that the offer was still completely unacceptable to our members. We stated that we reserved our right to communicate with our own members setting out quite clearly what their own individual options were in response to the employers proposals.
The last consultation meeting took place on the 14th December where it was confirmed that no agreement had been reached and that the Council would now move to impose if individuals did not accept the changes voluntarily. To this effect an individual letter was sent to all employees the next day from the Chief Executive. This asked people to agree the individual terms on offer by 14th January 2011 and if they did they would be entitled to 5 months pay protection from 1st April to 31st August 2011. If they did not accept they would not get this protection and the employer would begin individual consultations with a view to dismissal and re-engagement on the new terms and conditions to be effective from 1st April 2011.
As the schools broke up for their Christmas break on the 17th of December and did not return until 4th January this has made the timescale for consultation with union members in these areas even shorter and more difficult because of the holiday period.
So what happens next?
The obvious question that is asked in response to the employer’s intention to dismiss and re-engage would be is the process legal? Conventional employment law advice says that dismissal and re-engagement to impose detrimental changes is not unfair if the employer can demonstrate a business necessity and if full notice and consultation requirements are observed. Of course the Council will argue that there is a business need to implement a Single Status agreement and that they have jumped through every legal hoop in terms of consultation required of them and that the move to dismissal and re-engagement has only come as a last resort after all other avenues have failed. Under Section 98 (1) of the Employment Rights Act 1996 an employer can dismiss for “some other substantial reason” provided they can justify the change and show the dismissal was necessary and that they have acted reasonably in all circumstances. It is not difficult to see how Northamptonshire County Council would set out a legal defence of this nature if challenged in an Employment Tribunal. In fact, initial legal advice taken by the GMB on this matter suggests that such an argument put forward by the employer may be difficult to overcome. I do not at this stage want to rule out a legal challenge entirely and will return to such options later in this letter.
I think it important to point out that this tactic of dismissal and re-engagement should not be seen in isolation in Northants as this situation is now arising in many other local authorities across the UK. Clearly there has to be a belief that local authorities are using this method as a tactic to change terms and conditions in a co-ordinated manner.
Although to start the consultation period the Council had to issue what is know as a “Section 188” redundancy notice this situation is not a redundancy one as no jobs are actually being made redundant as a result of the Pay and Benefits project. This means that individual employees are not entitled to take redundancy as an alternative to refusing the new terms and conditions. Equally the employer cannot choose not to re-engage certain individuals if they do not wish to do so. If they did this would almost certainly make the dismissal unfair. As what is happening here is a termination and immediate re-engagement on new terms and conditions there is no break in service so length of service and accrued pension rights would be protected. This would be important in any potential subsequent redundancy situation where length of service is used to calculate redundancy pay.
For those of you who have appealed against your job evaluation outcome I think it is important to remember that this should be seen as separate from the Pay and Benefits package imposition. By accepting the package as a whole you are not withdrawing your appeal. Even if you do not accept the proposal and your appeal is not resolved until after 1st April then any changes to pay as a result of the appeal would be retrospective and backdated to the 1st April 2011.
What about Industrial Action?
You will recall that in the last advice letter in November the GMB undertook a consultative ballot on behalf of its membership to determine whether or not there was a willingness to undertake a campaign of industrial action against the proposals. Unfortunately the return rate on this ballot was not as good as had been hoped for and of those that did return ballot papers a small majority voted not to pursue any course of industrial action. Although this is disappointing in that it means the option of collective industrial action is not a viable one it is not altogether surprising as the proposals did not affect everyone in the same way. Consequently I think that it would have been difficult to achieve a positive ballot result when individual circumstances were so varied. I am sure the Council had also anticipated that this would be the case which made them bolder in their pursuit of the dismissal and re-engagement policy.
What are the options from here?
If opposition to the Council’s proposals cannot be mounted through a campaign of industrial action then that leaves GMB members who have not signed to agree acceptance of the new terms and conditions with two choices of either signing or not. I fully accept that the Council’s ultimatum of a response by 14th January 2011 and clear financial considerations between the two options may seem like being asked to make a decision under extreme duress. This point was made on several occasions during the consultations by the trade unions.
If you accept the proposals by 14th January your existing pay and conditions will be protected for 5 months from 1st April 2011 to 31st August 2011. This may have clear financial benefits to some of you which you may well wish to consider. For those of you with Job Evaluation appeals still pending signing the terms and conditions acceptance does not stop your appeal proceeding, nor does it undermine the basis of your appeal.
If you do not accept the proposals then the Council will have to issue you formal notice of their intention to dismiss and re-engage you on the new terms as of 1st April 2011. If you have not voluntarily signed, you will not be eligible for any pay protection beyond this date whatsoever. If individuals do not sign the new terms and conditions then I would advise them to submit a letter to their employer stating clearly that they do not accept the proposed
changes and that they will only work them under duress whilst retaining their rights to take legal action against the Council. The GMB will then take further legal advice on behalf of members in this position. If it is your intention not to sign the Council’s proposals would you please contact the GMB office in Peterborough on 01733 344418 or e-mail David Shamma at so that further advice can be given once formal notice has been given to individuals by the Council.
Although I have tried to outline the various options and consequences open to GMB members in this very difficult situation the GMB cannot instruct members what to do. As the proposals can affect individuals in a number of ways there is not a blanket response that can be given that can advise everyone accordingly.
I have outlined the options but in the final analysis the choice as to what is best for the individual member must come down to that person alone. Whatever course of action individuals choose to take the GMB will continue to try to support our members as best as we can in very difficult circumstances.
I do not think it is any exaggeration to say that the current time is possibly the worse time to be a Local Authority employee in a generation. The current pain of Pay and Benefits may be dwarfed by the £136 million spending cuts planned by Northamptonshire County Council over the next 4 years. What exactly this will mean for jobs and services in the County in the future no one really knows. Things may get a whole lot worse before they get better.
However, to the GMB savage cuts in public spending are politically driven and can be opposed. There are other alternatives to the slashing and burning of public services and jobs. That is why we will be joining the TUC mass rally against the cuts on 26th March 2011 in London. I would urge everyone who cares about public sector jobs to do the same.
DAVID SHAMMA
ORGANISER
JANUARY 2011