Mark Greenburgh, employment law partner and head of local government at Wragge & Co, said there was a discrepancy between employment law and the proposed methods for recruiting senior managers for the new councils which are being created next year.
He said local government minister John Healey’s parliamentary statement last month calling for “the majority of top posts” to be recruited by open competition could lead to litigation. “One understands the aspiration the government is trying to achieve, but just because the minister says it doesn’t make it right and doesn’t make it legal,” Mr Greenburgh said.
He added that service directors moving to the unitaries under the expected Transfer of Undertakings (Protection of Employment) TUPE regulations would be disadvantaged because they had to compete for the new version of their old job.
“The government says it wants terms and conditions to be made less favourable than they were prior to the transfer. That is contrary to the Employment Rights Act 1996, which says you need to give prior consideration to existing staff.”
He said anyone who did not get the new version of their old job could have grounds for legal action.
Lucille Thirlby, a senior national organiser at Unison, said the union was also aware of a discrepancy between the open competition rule and existing employment law. “We have raised that with the Department of Communities & Local Government,” she said.
A DCLG spokeswoman said that open competition for the top positions at the new unitaries was still considered key, but that exceptions could be made when there was a “definite need” for particular individuals’ skills and experience.
She added senior roles in the new authorities were likely to be “significantly different from those in any of the predecessor authorities”.