Caught in the crossfire: local authority outsourcing and the murky world of employment law

Ian Briggs

Given the extent of legislation affecting officers and members in local government, it can be rather misleading to see the influence of Westminster solely through the lens of direct local government legislation. Wider legislation on employment has arguably had as big an impact on the way that local government and local government services are delivered.

For councils the reshaping of delivery means, in the majority of cases, seeking partnerships with external providers. Where services are outsourced or delivered through contract, the costs associated with redundancy and passing over employment duties to others is an issue that perpetually causes debate and discussion.

The application of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) to transfers from the public sector, commonly known as ‘TUPE plus’, has been regarded as being more onerous on public sector employers than others. The Coalition Government has since 2010 gradually watered down these legal obligations but they are still regarded as problematic.

It is generally accepted that employment legislation is a problem area for local government and for many there is a desire to see a more flexible approach to employment. By implication, employment law is a matter that perhaps needs some review.

So, is this an issue that is shared in other places? The approach to employment practices that is enshrined in law across Europe raises some interesting issues. The media has made much of the economic problems in Greece, citing the high levels of protection afforded to civil servants and public employees there. The European Working Time directive is taken very seriously there; when the hours are worked the person stops and goes home! A similar situation exists in France and Italy, where anecdotal evidence suggests that even police officers, when they are part way through an arrest, have clocked off and gone home as their hours are worked.

The obligations of local authorities in a TUPE transfer are not entirely clear; TUPE plus has been significantly eroded but not removed altogether. In any future outsourcing situation, a local authority risks being caught in the crossfire between prospective contractors and trade unions. On the one hand, prospective contractors are likely to be reluctant to incur costs, offering generous employment benefits which go beyond the normal requirements of TUPE. On the other hand, the trade unions are likely to push for full-scale TUPE plus protection, or as close to this as they can realistically achieve. Any such situation is likely to need careful handling to minimise any potential exposure and legal advice should be taken wherever necessary.


Ian Briggs is a Senior Fellow at the Institute of Local Government Studies. He has research interests in the development and assessment of leadership, performance coaching, organisational development and change, and the establishment of shared service provision.

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