Barnet DRS joint employment contracts - are they legal?

Tomorrow is the General Functions Committee at Barnet Council. The agenda and meeting reports can be viewed here.

Right from the outset there has been a concern about outsourcing development and regulatory services because some of these duties are statutory responsibilities which cannot be delegated. The way Capita have wiggled round the problem is to set up joint contracts. These contracts mean that for part of the officers' duties they are an employee of the Joint Venture which then can mysteriously morph into a Council employment contract as they for example walk through a door or step into a witness box

On 5th August Capita wrote to the Council stating on the joint employment contracts:
"Due to the specialist nature of this situation, Capita Symonds & LBB are currently working through the practicalities of this model and therefore future measures will be confirmed in respect of the Joint Employees once both parties have had further discussions".

So what they are saying is this is a one off and they are not sure if Joint Employment contracts will work - and this is just one day before the contract with Capita was signed by Richard Cornelius. John Burgess from Barnet Unison has written to the GFC which includes the following:

I want to draw your attention to the GFC report section 4 Risk Management Issue No 3 states:
“Staff currently carrying out non-delegable statutory functions may choose not to sign the joint employment contract to allow them to carry out these activities post transfer.”
I can report that following the joint attendance workshops many staff were even more confused and concerned about the credibility of this as an option to enable staff to carry out their non delegable statutory duties or functions. It is now six weeks since these workshops took place and staff have still not seen any answers to the questions they raised.

The presentation included practical examples of how the proposes joint employment contract would work. This presentation was flawed as staff quickly spotted false assumptions about decision making. What didn’t help was that on each example it said “ILLUSTRATION ONLY - NOT FACTUALLY CORRECT”
This led staff to ask if legal advisors Trowers had been asked to give a legal view of something that was factually incorrect. 

A number of staff have said

“All it will take is for a clever lawyer acting on behalf of a business or resident to start to challenge whether the officer made the enforcement decision as a employee of the Council or Capita. If a challenge is successful then joint employment option will no longer be able to be used to carry out non delegable statutory duties or functions, and this would put the Council at risk of not being able to discharge its statutory duties and functions”

So there you have it. Richard Cornelius has rushed headlong to sign a contract which legally may be virtually impossible to operate or may be subject to legal challenge the first time staff try and enforce their statutory duties. The legal advice is unclear and untested. What a complete and utter mess. I shall be there tomorrow evening to see how the loyal but unwhipped Councillors try and talk their way out of this one.