APACE DISCUSSION DOCUMENT NOT FOR FURTHER CIRCULATION

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1 Police and Crime Commissioner HR Issues Staff 1. The Act provides an explicit power to appoint staff 1 and pay them remuneration, allowances and gratuities 2. Anyone transferring from the police authority to the PCC to do the same or substantially the same duties does not become politically restricted by reason of the transfer. Only those who are currently politically restricted remain so on initial transfer 3. However, anyone commencing employment with the PCC after initial transfer is politically restricted, except for the Deputy Police and Crime Commissioner (DPCC) 4. This restriction will apply to those people employed by the PCC but under the direction and control of the chief constable. Deputy Police and Crime Commissioners 2. A PCC may appoint a person as the DPCC for their police area 5. Therefore there can only be one DPCC. It is not a post that is created but an office held by one person. It is not possible to create multiple DPCCs through a job-share or other contractual arrangement. The DPCC is a member of the PCC s staff 6, and as such may have specific terms and conditions, including a notice period. The only statutory restriction is that their term of office must end no later than the end of the PCC s term of office ends To enable a framework for resolution of any issues relating to the DPCCs employment, it is recommended that a contract of employment is set up for the DPCC, setting out applicable employment rights and responsibilities, including those relating to dismissal, conduct and discipline, remuneration and allowances, availability, duties and responsibilities. The Code of Conduct for Special Advisers 8 should be considered when developing such a framework. 4. It is perhaps worth noting here that PCCs can give their staff whatever job titles they like, and there is nothing in law to stop them describing a number of people as "deputy PCC for ". However, there can only be one statutory deputy with the unique features of that post. To use these 1 para6(1) and (3) sch1 PRSRA11 2 para13 sch1 PRSRA11 3 para20 sch15 PRSRA11 4 s1(9) LGHA89 as amended 5 s18(1)(a) PRSRA11 6 s18(10) PRSRA11 7 para8(3) sch1 PRSRA Police and Crime Commissioner HR issues October 2012 Page 1 of 6

2 Others titles for appointments other than the statutory DPCC runs a greater risk of the PCC creating a legitimate expectation in public law areas. Also, complaints and misconduct of DPCCs are governed by the same legislation relating to PCCs 9, and anyone given the title of deputy PCC is at risk of being caught by those regulations. In contrast, anyone titled assistant PCC or something similar would be covered by the standards regime applicable to PCC staff and not come under the jurisdiction of the Police and Crime Panel and IPCC. 5. Only a DPCC can have certain of the PCC s functions delegated to them 10. Other functions can be delegated to any other person, including people who are not members of the PCCs staff, subject to certain restrictions that are not relevant here. 6. A PCC may do anything which is calculated to facilitate, or is conducive or incidental to, the exercise of their functions, subject to the provisions of legislation regarding the powers of PCCs 11. A PCC may therefore appoint persons to fulfil certain functions, subject to the general scepticism of the courts where the arrangements provide a reward or benefit to an individual rather than facilitating a function 12. If they are to be paid remuneration, gratuities or allowances, that can only be achieved either by employing them as a member of staff or under a contract for the provision of services. 7. If someone is employed they will be politically restricted 4 and must be appointed on merit There are alternatives to employment, including secondments and contracts for services. None of these options affect the duty to publish public spending. 9. A secondment wholly funded by another body would be permissible under this provision. As long as the contractual position was clear, such a person would not be a member of staff of the PCC and therefore need not be politically restricted. 10. A contract for services has to be let in a manner compatible with the PCC s Financial Regulations and Contract Standing Orders. Assuming that is done an adviser engaged in this way may not be a member of the PCC s staff, so they would not be subject to the political restriction requirement. However, care needs to be taken as in some circumstances a contract for services can become in law a contract of 9 Elected Policing Bodies (Complaints and Misconduct) Regulations s18(7)(b) (c and (d) 11 para14 sch1 PRSRA11 12 Hinckley & Bosworth BC v Saw & Coker [2000] LGA 9; Re Application by the Local Govt Auditor [2005] NIQB s7 LGHA89 as amended Police and Crime Commissioner HR issues October 2012 Page 2 of 6

3 employment, and so political restriction would apply. Similarly, if the use of this arrangement were to be seen as a device to circumvent the proper principles of governance enshrined by Parliament in the legislation, this would be subject to a challenge by way of judicial review. 11. Over the years the courts have developed a number of tests designed to assess whether a person is employed (with the rights and restrictions that go with employment) or working under a contract for services. Fundamentally, for an employer/employee relationship to exist there must be a contract of employment, either express or implied. 12. Overall, the following factors should be taken into account: a. The contractual provisions, and whether or not those provisions do represent the true relationship between the parties 14 b. The degree of control exercised by the employer 15 c. The obligation on the employer to provide work 16 d. The obligation on the employee to do the work e. The duty of personal service 17 f. The provision of tools, equipment, etc 18 g. The arrangements made for tax, national insurance VAT, statutory sick pay 19 h. The opportunity to work for other employers 20 i. Other contractual provisions, including holiday pay, sick pay, notice, fees, expenses, etc 21 j. The degree of financial risk and the responsibility for investment and management 22 k. Whether the relationship of being self-employed is a genuine one, or whether there is an attempt to avoid legislation 23 l. The number of assignments, the duration of the engagement, and the risk of running bad debts 24 m. The presence or absence of mutuality of the obligation to do or provide the work No single factor can be conclusive by itself and all the relevant circumstances must be considered. 14. It must be remembered that any person whether paid or unpaid who has access to the Police and Crime Commissioner s papers and meetings should be properly vetted and regulated. Privileges such as 14 BSM(1257)Ltd v Secretary of State for Social Services [1978] ICR Secretary of State for the DBERR v Neifeld [2009] EWCA Civ Nethermere (St Neots) Ltd v Gardiner [1984] ICR Ready Mixed Concrete (South East) Ltd v Ministry of Pensions and NI [1968] 1 AllER Willy Scheidegger Swiss Typewriting School v Minister for Social Security (1968) 5 KIR Davis v New England College of Arundel [1977] ICR 6 20 WHPT Housing Association Ltd v Secretary of State for Social Services [1981] ICR Tyne and Clyde Warehouses Ltd v Hamerton [1978] ICR Market Investigations Ltd v Minister of Social Security [1969] 2 QB Young & Woods Ltd v West [1980] IRLR Hall v Lorimer [1992] 1 WLR Carmichael v National Power plc [1998] ICR 1167 Police and Crime Commissioner HR issues October 2012 Page 3 of 6

4 access to policing buildings, and to papers and meetings, must be balanced with clarity for all concerned over individual s responsibilities and the terms and conditions on which that access is granted. 26 The Code of Conduct for Special Advisers would be just as useful in determining the role of such support as in setting out the terms and role of the DPCC (see 3 above). Illustrations Assistant PCCs 15. The PCC wishes to appoint a representative for each of the 7 local authority areas in their police area. They are to be local councillors of the same political party, and their duties would be to represent the PCC s interests in their Authority, meet regularly, perhaps monthly, with the local police commander for that area to keep abreast of local policing issues, and to assist in obtaining the views of the public in that area. They want to give an annual allowance, payable monthly, and the term of appointment is to be at the PCC s discretion. 16. These would be political appointments, and as such cannot be to the PCCs staff. To enable this, the most straight-forward vehicle would be under a contract for services. A document setting out the functions of the appointment would include: The degree of control exercised by the PCC (reporting, policy direction, key messages to communicate, etc) The obligations of each party (as set out above) A clause enabling the assistant PCCs to allocate an event or task to another councillor of the same party and local authority would help avoid accusations that this would involve a duty of personal service and therefore one of employment No equipment to be provided (as they should be able to use that provided by their local authority). Payment by means of an allowance with expenses only, making the assistant PCCs liable for their own VAT, pension arrangements, etc, with no provision for sick pay. That there is no restriction on their undertaking other roles as long as these are declared in accordance with a code of conduct (including declaration of interests) A very short notice period, which would enable either side of the arrangement to withdraw with a minimum of fuss, and The length of the contract, which must not extent beyond the end of the PCC s term of office, or that of the councillor appointed. 17. Ideally, the code of conduct and other regimes applicable to the appointments should not refer to staff or employment in any way, even if their terms are otherwise similar to that of PCC staff. 26 Special Advisers In The Thick Of It, House of Commons Public Administration Select Committee September 2012, paragraph 56 Police and Crime Commissioner HR issues October 2012 Page 4 of 6

5 18. Together, these factors would all help demonstrate that this would be a contract for services, not one of employment, and therefore avoid the requirement to be politically restricted. 19. Ideally this document would be published in accordance with the principles of good governance. Political Adviser 20. The PCC wants to have someone to advise them on the political implications of decisions and events, and on how to respond to them. They want them available during normal office hours, and available on call out of those hours. 21. If this can be an appointment on merit, of someone who is prepared to be politically restricted, then this could be achieved through a straightforward contract of employment of a member of staff. 22. In any other circumstance this could not be legally achieved through a contract of employment. An attempt could be made to secure such support through a contract for services. There would be some significant hurdles, not least the time commitment, the resultant inability to work for other employers, the duty of personal service the arrangement creates, and the degree of control the PCC would exercise (requiring advice and support when it was needed by the PCC). Taking all the factors into account, it is highly likely that a court would view such an arrangement as a contract of employment, and therefore illegal. Even the use of exceptionally careful phrasing to try and avoid any suggestion of employment would itself fall foul of 12(k) above, rendering the arrangement at risk of being found illegal. 23. An alternative would be to secure such support through another body (a limited company, local authority, trade union or other legal entity), as the contract would be with that body and not any individual. 24. As stated at 10 above, the letting of such contracts would have to comply with the PCC s Contract Standing Orders and Financial Regulations. Independent members of the Audit Panel 25. These appointments are similar to independent members of standards committees. They too would be paid on the basis of an allowance, with limited call on their time over the period of appointment. 26. The criteria would be similar to the illustration regarding assistant PCCs above, except that they will be unable to allocate any tasks to someone else. Police and Crime Commissioner HR issues October 2012 Page 5 of 6

6 Notes Contractual Provisions: while the parties cannot alter the nature of their relationship by putting a different label on it, where the situation is in doubt or is ambiguous, an agreement which stipulates the nature of the relationship affords strong evidence of what it is 27. However, if the arrangements, when viewed objectively, look like a device or a ruse (and the complexity or counter-intuitive nature of such arrangements might support such an allegation), the whole arrangement could be challenged by way of judicial review. Similarly, any connivance by the PCC themselves in setting up such arrangements might be treated as misconduct in a public office. Control is the extent to which a person is under the direction and control of the other party with regard to the manner in which the work is done 28. The right to control is sometimes considered as significant as the actual extent of control. The greater the degree of control which is exercisable by the PCC the more likely it will be a contract of employment 29. If someone s work is done as an integral part of the business, then it may be a contract of employment, not for services 30. Mutuality of Obligations: together with elements of control are usually seen as essential pre-requisites for a contract of employment to exist. The elements of this test are: i) whether there is one contract or a succession of short-term contracts; ii) if there is one contract did the PCC undertake to provide a minimum amount of work; iii) was there such control as to turn the arrangement into a contract of employment; and iv) was the claimant obliged to do a minimum amount of work? 31 There must be an obligation on the part of the PCC to provide work, and an equal obligation upon the worker to do the work when offered. If these features are not present it is likely there is no contract of employment. If the PCC can decline to offer work, or the worker can refuse to do the work when offered, it is likely that no contract for employment exists. However, mutuality can be inferred from how the contract operates in practice over a period of time. Mutuality of obligations also requires the essential element of personal service. If a worker is permitted to provide a substitute to do the work, a contract of employment may not exist 32, however this is not conclusive Massey v Crown Life Insurance Co [1978] 2 AllER Narich Pty Ltd v Payroll Tax Comr [1984] ICR 286, PC 29 Whittaker v Ministry of Pensions and National Insurance [1967] 1 QB Stevenson, Jordan, and Harrison Ltd v MacDonald and Evans [1952] 1 TLR Cotswold Developments Construction Ltd v Williams [2006] IRLR Ready Mixed Concrete (South East) Ltd v Ministry of Pensions and NI [1968] 1 AllER MacFarlane v Glasgow City Council [2001] IRLR 7 Police and Crime Commissioner HR issues October 2012 Page 6 of 6