Former Local Government Management Board Director Tim Rothwell criticised the plans to use the legal concept of frustration of contract in a speech to a conference in Llandudno organised by LGMB (Wales) and the Society of Chief Personnel Officers.
The concept provides for the contracts of those who do not have a job after reorganisation to be terminated by statute so outgoing authorities do not have to give notice or enter into consultation with individuals and unions.
'It is flawed and it is unfair morally and not accepted professionally', Mr Rothwell said. He argued that frustration of contract in effect means redundancy so councils cannot avoid their legal obligations for notice periods and consultation which are set out in legislation concerning the handling of redundancies. These rules were tightened in the Trade Union Reform and Employment Rights Act 1993 (TURER). 'There is almost certain to be a legal challenge against the concept and given the Transfer of Undertakings (Protection of Employment) Regulations and the Trade Union Reform and Employment Rights Act 1993 it is almost certain to be successful'.
'This principle has been accepted in England but I am not so sure it has been accepted in Wales in the same way. The potential role of the Staff Commission is wider in Wales than in England'. The principles of TUPE should apply to the reorganisation, he argued. This would not mean that all staff transferred to new authorities, he said. The regulations would only apply where there was a relevant transfer of an undertaking, such as a school or a particular department. The government could incorporate the principles of TUPE in staff transfer orders.
'It is unlikely that the Welsh Office or the DoE will say publicly that TUPE applies because of the ramifications for other parts of the public sector, particularly the civil service. 'Better not to have a legal debate about whether TUPE applies or not but to accept the principle of it', he said.