This breaks with advice to the Local Government Management Board from Patrick Elias QC which said all staff should be transferred when a function is shifted to a new authority under the transfer of undertakings regulations.
One observer said the new opinion, from the head of law school at Kingston University Professor Robert Upex, was 'rubbish - if staff are entitled to transfer they are entitled to transfer. You can't say at the time of creation of a new council that the selection has already been carried out'.
Professor Upex's report says it would be a lawful option for successor authorities to start by taking their own staff as an unchanging base. They would then decide how many more staff were needed in each department, and select them now from authorities being wound down, effectively offering them jobs with the new authority.
Professor Upex accepts in his advice that successor authorities will pick up the bill for these redundancy payments, since the wound down councils would not have made the staff redundant themselves.
But the observer said staff made redundant in this way were likely to take action at employment tribunals.
The new advice seems to conflict with Dr Elias's opinion on pre-selection for redundancies and selection of redundancies only from transferring staff. He warned that new councils wanting to make staff cuts must make no distinction when selecting people for redundancy between existing staff and those who have transferred from other authorities.
'Any selection of staff purely from the transferred group, or even a policy which requires that group where possible to be dismissed first, will be unfair,' Dr Elias advised.
LGC understands that Professor Upex was also asked by the Staff Commission to provide advice on local government reorganisation in the hotly contested areas of Cleveland and the Isle of Wight, and this is contained in separate sections of the document.
The local government associations and the Local Government Management Board had not seen the opinion as LGC went to press, though they had been informed by the Staff Commission that they would receive advance copies shortly.
The Staff Commission has patched up relations with the Society of Chief Personnel Officers by handing its guidance on good personnel practice for reorganisation over to the society for consultation prior to its release.
SOCPO had complained of previously being ignored by the commission but representatives said they had accepted assurances from commission chairman Alan Atherton that the society's views had had a strong influence in the past, though the commission had not provided feedback to make this clear.