QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
|- and -
MINISTRY OF DEFENCE
for the Claimant
Mr Hugh Tomlinson QC (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 19 August 2008
Crown Copyright ©
Mr Justice Wyn Williams :
" .. the civilian staff reductions required during Planning Round 08, including the restructuring under the Streamlining and Pace programmes."
"The Early Release Scheme is voluntary and interested eligible staff should apply for Early Retirement or Early Severance (as appropriate according to age and proposed date of departure) on Flexible ("FER/S") terms or Compulsory ("CER/S") terms, or the equivalent in their own scheme."
RELEVANT FACTUAL BACKGROUND
"5. We want to create:
a. a Department which plays its full part in wider government decision-making about the security of the UK and international security policy and a Head Office which operates on the basis of an informed view of the strategic situation;
b. a Department which is agile, reacts quickly to changing circumstances, makes good decisions quickly for the short and long term and makes them stick;
c. a Head Office which has the right number of people of the right quality working only on tasks that must be carried out at the Centre;
d. a Department with an agreed business framework in which the relationship between Head Office and other areas is understood by all parties, where there is clear delineation of responsibilities and no duplication of work;
e. collective responsibility for delivering the best outcomes for Defence-led from the top with Board Members articulating and driving the decisions made by the Board;
f. a Department which builds on its unified civil-military structure which reflects the MoD's dual and complementary functions as a Department of State and strategic military headquarters, and ties closely together strategic planning with a focus on delivery.
6. Many of the Board's specific proposals below focus on structural changes. These are necessary to enable change to take place and savings to be realised, but will not by themselves be enough. We need to change our approach to work as well. The Board will collectively and individually act to ensure that they create clear responsibilities and authority, getting rid of the lack of personal accountability and the inefficiency of 'lowest common denominator' consensus-driven advice. We will bear down on the culture of over-briefing and unnecessary staff work. We will foster an atmosphere in which making things happen in the most efficient way possible is the default setting.
7. Through reducing unnecessary process, cutting committees and over briefing, removing duplication, and building a more strategic, focused Head Office, our proposals enable us to meet the Board's target of reducing the size of Head Office by 25%. The number of London-based staff, both Service and civilian, amounts to around 5000. To reduce this by 25% involves the loss of some 1,300 posts, with a further 800 potentially relocated out of London. We do not under estimate the scale of this change or the impact on staff. This document sets out in broad terms how those changes will be managed, though specific decisions will be taken in the light of the whole Departmental picture and following consultation.
8. The Department assumed for planning purposes that Streamlining will generate ongoing cost savings of some £50M per year by 2010/11 (which represents approximately 25% of the Head Office costs in 2007). The reductions above will enable us to meet that saving and possibly exceed it."
"in order to achieve the civilian staff reductions required through the Streamlining programme "
The object of the consultative document was to provide a basis for the Defendant to consult trade unions on relevant proposals.
"We propose that applicants will be asked to nominate the terms on which they are prepared to be released, in the knowledge that cost will be a key selection criterion. They will be given access to cost information on both "F" and "C" terms before submitting an application, in order that they are fully informed."
"The Department is not in a redundancy situation and it is the Department's aim to achieve the restructuring and reductions entirely through voluntary early release and natural wastage, if this is possible, consistent with business needs."
"(a) providing for the number and grading of posts in the Service, the classification of all persons employed therein, their remuneration, expenses, allowances, holidays, hours of work, part-time and other working arrangements, retirement and redundancy, the re-instatement and re-employment of persons in the Service, the re-deployment of staff within the Service and the conditions of service of all persons employed in the Service;
(b) for the controlling of the conduct of the service;
"2. This Code .. sets out regulations and instructions to departments and agencies regarding the terms and conditions of service of civil servants and the delegations which have been made by the Minister for the Civil Service . together with conditions attaching to those delegations. . Where departments and agencies are given discretion to determine terms and conditions, the code sets out the rules and principles which must be adhered to in the exercise of those discretions. It does not of itself set out terms and conditions of service.
3. Ministers and office holders in charge of Departments .. have been given the authority:
(b) to determine the number and grading of posts outside the Senior Civil Service in their respective departments and the terms and conditions of employment of Home civil servants in so far as they relate to the following:
(ii) remuneration, with the exception of the Senior Civil Service;
4. This delegation, which revokes all previous delegations, is made subject to the condition that recipients of delegations comply with the provisions of this Code as amended from time to time "
"11.5 Early Retirement or Severance
11.5.1 Staff can retire or be retired early under the following categories:
- Compulsory Early Retirement or Severance;
- Flexible Early Retirement or Severance
- Approved Early Retirement;
- Actuarially Reduced Retirement; and
- Medical Retirement.
Early retirement applies to staff aged 50 or over, whereas early severance applies to staff aged under 50 .
Benefits Payable on Early Retirement or Severance
11.5.3 Full details of the benefits payable under the various categories may be found in the Civil Service Compensation Scheme (CSCS) and the Rules of the Principal Civil Service Pension Scheme (PCSPS) as appropriate.
11.6. Compulsory Early Retirement or Severance
11.6.1 The definition of redundancy is set out in section 139 of the Employment Rights Act 1996. Departments and agencies have authority to determine the redundancy procedures which applied to their staff, subject to the following conditions.
11.6.2 Departments and agencies must:
a. act consistently with the statutory provisions relating to redundancy, apart from those relating to compensation (which is provided for in the Civil Service Compensation Scheme);
b. have regard to good industrial relations practice and take into account the guidance available in the ACAS booklet (redundancy handling) .. and
c.) consider all measures which might avoid or minimise the need for compulsory redundancy.
11.6.3 As a pre-redundancy measure Departments and agencies may call for volunteers to leave on compulsory terms in order to avoid the compulsory redundancy procedures.
11.6.4 Departments and agencies may retire staff early on grounds of structure. This denotes severe management problems, for example caused by serious promotion blockages or other situations causing serious managerial or organisational difficulties which impair the efficient working of the Department. Compulsory Early Retirement or Severance on grounds of structure applies principally to members of the Senior Civil Service ..
11.6.5 Departments and agencies may retire staff early on grounds of limited efficiency where performance is deemed to fall within the definition in section 6.3, this has been reflected on at least two occasions in the normal reporting cycle, and no improvement is likely. Compulsory retirement of staff on grounds of limited efficiency applies principally to members of the Senior Civil Service
11.7 Flexible Early Retirement or Severance
11.7.1 Departments and agencies may invite staff to leave in the wider interests of efficiency and effectiveness of the Civil Service. The possible grounds are:
a. Structure-to help with management problems, for example caused by promotion blockages, succession planning or organisational changes;
"A civil servant who is compulsorily retired early on grounds of structure or limited efficiency, or retired early on grounds of redundancy, will receive the benefits as described in rules 2.2 to 2.9."
As I understand it the benefits described in rules 2.2 to 2.9 are the "C" terms.
"(1) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to
(a) the fact that his employer has ceased or intends to cease
(i) to carry on the business for the purposes of which the employee was employed by him, or
(ii) to carry out that business in the place where the employee was so employed, or
(b) the fact that the requirements of that business
(i) for employees to carry out work of a particular kind, or
(ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer,
have ceased or diminished or are expected to cease or diminish."
"Flexible early retirement
15. Purpose To enable management to invite specific individuals to leave the civil service in the interest of the efficiency and effectiveness of the service. It does not provide an alternative to the redundancy arrangements. Where a staff surplus occurs as a straight result of a contraction in departmental numbers, it will still be necessary for this to be dealt with under the provision of the model redundancy agreement or a departmental version of it."
To repeat this Circular was issued many years before the Code came into existence. On the basis that it was explaining a provision in very similar terms, however, it seems to me that it can be used as one of the tools for interpreting the provisions of the Code. That being so, in my judgment it is a pointer towards the interpretation of the Code for which Mr Millar QC contends. That said, it cannot of itself conclusively determine the meaning to be given to the relevant provisions of the Code. Mr. Millar QC does not suggest otherwise.