PLC Public Sector reports:
Make sure your “to do” list is complete by reviewing our list of recommended actions based on this week’s email. With key developments on the right to holiday pay, recruitment questionnaires, FOI and the retention of employment model, there is sure to be something that you need to know.
This week’s recommended actions are:
Holiday pay: HR departments should note that employees accrue and are entitled to take statutory annual leave while off sick. They are also entitled to be paid in respect of such leave, even where they have exhausted their statutory and contractual sick pay entitlements following a concession by HMRC in a test case in the House of Lords.
Recruitment: Cheltenham Borough Council’s failure to obtain damages from its former chief executive highlights the need for local authorities to review their recruitment practices:
- Firstly, all forms, including medical questionnaires, should be reviewed on a regular basis to check all requests are still relevant, are unambiguous and preferably include a “catch all” provision.
- Secondly, if you are going to ask these questions make sure the answers are reviewed and, if necessary, followed up – for example with the applicant’s GP. Where there is any confusion as to what you can and can’t do, seek legal advice, especially where the appointment is important and high profile.
FOIA refusal notices: Central government authorities must ensure they use clear, specific reasons when claiming the exemption in section 35 of FOIA (which relates to the formulation of government policy). If they do not, the ICO has made it clear that they risk having to disclose the information. For assistance with how to respond to FOI requests, see our check list.
Data protection standard: with public organisations continually incurring criticism for their attitude toward data security, authorities should consider the new BSI data protection standard to see if it could be incorporated into their practices. Authorities entering into contracts with third party contractors who will be required to process personal data could consider these standards when drawing up specifications.
Staff transfers from the NHS: from I July 2009 any NHS project based on the retention of employment model will need Secretary of State approval to use the NHS Pension Scheme.
Right to buy: a recent House of Lords decision clarified that a housing benefit rebate qualifies as a payment of rent for the purposes of the right to buy provisions of the Housing Act 1985. More importantly, the case highlighted the need for authorities to respond promptly to requests to exercise the right to buy. In this instance, the authority had delayed for so long that the entire purchase price was offset by the housing benefit due to the tenant in the interim period.
Special educational needs: local authorities must ensure that adequate transition planning is undertaken for teenage children with SEN statements. The LGO recently awarded £17,000 in respect of a case where poor planning left a 16-year old with no education provision for 14 months. It goes without saying that the other errors made by the council in this instance, such as not carrying out annual reviews, should also be avoided.
Local authorities should also note the need for all newly appointed SEN co-ordinators to undertake nationally approved training within 3 years.
Education in Wales: As a result of new regulations, Welsh education authorities and schools employing teachers who are registered with the General Teaching Council for Wales and supply agencies are required to report all cases of misconduct and incompetence to the General Teaching Council for Wales.
Safeguarding children and young people: When exercising their social service functions, local authorities and local safeguarding children boards should consider the supplemental guidance on safeguarding children and young people from sexual exploitation and, unless there are exceptional reasons for not doing so, comply with that guidance.
Consultations: This week has seen consultations on the proposed public sector equality duties, arrangements for the registration and monitoring of home educated children, the right to control for disabled people, standard permits for waste operations and changes to the habitats regulations. Anyone with an interest in any of these areas should take note and respond if appropriate.
If you wish to submit your views on any of the actions we have recommended, or would like to highlight any other issues that you feel need action by public sector lawyers, please feel free to submit a comment below.