Recommendation in Relation to the Recruitment of HSS Trust Chief Executives

Government sought views from the Public Service Commission in March 2006 in relation to the recruitment of a Chief Executive Designate for the proposed Health and Social Services Authority and the filling of Chief Executive posts in the 5 proposed HSS Trusts - at a time when it was apparent that plans were well advanced to proceed with advertisements for competitions open to the general public.

Mindful of its role to make recommendations to Government on the guiding principles and steps necessary to safeguard the interests of staff and to ensure their smooth transfer to new organisations established as a consequence of Government decisions on the Review of Public Administration, taking into account statutory obligations, including those arising from Section 75 of the Northern Ireland Act 1998, the Commission sought, and obtained, the Secretary of State’s agreement to postpone the advertisement of the post of Chief Executive Designate for the proposed Health and Social Services Authority. It was further agreed that decisions on how the Chief Executive posts in the HSS Trusts should be filled, would be deferred to enable the Commission to give due consideration to Government’s proposals.

Following formal discussions with Government about the Chief Executive Designate post for the proposed Health and Social Services Authority, “the Commission concluded that, in all the circumstances, on a ‘without prejudice’ basis, and taking into account that this particular post could be considered in material respects to be a new one, it is not necessary to have a more limited competition on this occasion.” In conveying its position to Government, the Commission indicated that it would deal, separately, with Government’s proposals for filling the Chief Executive posts in the HSS Trusts.

The Public Service Commission would have preferred to address the question of filling specific posts, such as the Chief Executives of the HSS Trusts, after it had the opportunity to develop, and consult on, the guiding principles which will underpin its recommendations. However, Government requested, as a matter of priority, that the Commission make an early recommendation on the filling of these posts. In responding to this request, and in keeping with the Commission’s role to safeguard the interests of staff and to ensure their smooth transfer to new organisations established as a consequence of Government decisions on the Review of Public Administration, taking into account statutory obligations, including those arising from Section 75 of the Northern Ireland Act 1998, the Commission’s position in relation to filling these posts is represented in the recommendation described below. Because it has not had the opportunity to formulate guiding principles, the Public Service Commission stresses that this recommendation is ‘without prejudice’ to its further recommendations.

In formulating this particular recommendation the Commission has had due regard to the Secretary of State’s aim, as set out in his statement of 22 November 2005, that “Every possible effort will be made to avoid redundancies.” The Commission has also had regard to the aims set out in its terms of reference for safeguarding the interests of staff and taking account of statutory obligations.

Having examined the papers submitted to it by Government, the Commission considers that a substantial proportion of the work which these Chief Executives will engage in is already being undertaken by people presently employed in the public service.

In the papers submitted to it by Government, there were references to a clear and essential business need for candidates to demonstrate relevant experience and evidence of achievement at senior level in health and/or social services; the Commission does not regard this as an essential criterion.

Even though Government does not appear to have carried out a full analysis of the unit of selection for potential redundancy, it seems to the Public Service Commission that these posts must constitute suitable alternative employment for existing staff. This could lead to the conclusion that, in a potential redundancy situation, there should be a limited competition for these posts in order to comply with the statutory obligations, relating to redundancy, and which are implicit in the Commission’s terms of reference. However, those terms of reference also oblige the Commission to have regard to other statutory obligations, and, in particular, to equality obligations.

The Public Service Commission recommends that Government should proceed to conduct a competition to fill the Chief Executive posts in the 5 proposed Trusts by inviting applications from those people employed in those public services which are affected by the announcements made by the Secretary of State in November 2005 and March 2006, subject to an analysis of the relevant data to establish that such an approach represents a proportionate means of meeting the Secretary of State’s aim to make every possible effort to avoid redundancies in a way which is compliant with statutory obligations, including Section 75 of the Northern Ireland Act 1998.

On the basis that Government is in the process of identifying and defining the appropriate ‘unit of selection’ for the purposes of potential redundancy situations, i.e.,

the Commission suggests that it would be prudent for Government to proceed with a competition as referred to in the formal recommendation on the grounds set out below.

The Commission also suggests that, rather than describing such a competition as being “restricted”, Government should represent it as being “open” to those people caught up by the related announcements in November 2005 and March 2006. This would have the effect of enabling Government to demonstrate its own commitment to safeguarding the interests of its employees and minimising the risk of redundancies. The Commission’s view is that where there is a potential redundancy situation, external recruitment as a matter of first resort is unreasonable and frustrates the primary objective of safeguarding the interests of staff.

The Commission acknowledges that, subject to other considerations referred to above, and should it not prove possible to fill any, or all, of the 5 posts, by means of a competition open to RPA groups, Government may wish to proceed with a competition that is open to the general public. In such circumstances the Commission would offer no objection to that course of action.

It is not apparent that Government consulted with trade unions or staff representatives about its intentions. The Commission wishes to take this opportunity to remind Government of its commitments to best practice and its obligations to inform and consult its employees; this was a central feature of the first guiding principle which the Commission conveyed to Government in May 2006.

In fulfilling its own obligations, including those concerning equality, the Commission recognises that Government will need to consider the relevant compositional data of the pools open to the general public, and the pools for RPA affected staff, so as to ensure that any competition meets the requirement of being a proportionate means of achieving a legitimate aim.

The Commission has reservations about the primacy attached to deadlines set by Ministers in the context of such a complex programme of change involving many organisations and more than 100,000 staff and has concerns about the adverse impact this has on safeguarding the interests of staff.

Sid McDowell

Chairman

Public Service Commission

31 May 2006