Search This Blog

Sunday, 20 December 2015

Joe Anderson seeking alibi from Tory ministers

I have a long delayed Freedom of Information request trying to reveal what the government is saying in response to Mayor Anderson's plea to help save his embarrassment - his letter to Greg Clark MP of 20th July, here.

I believe there is no justification for the use of Council resources in pursuit of his employment tribunal and then appeal tribunal claim against Chesterfield High School.  I believe that the letter to the Tory Secretary of State looks like an attempt to distract attention from the misuse of those Council resources by claiming a bogus public interest in clarifying the employment protection rights of elected mayors.

I think the continued delay in releasing the government correspondence, under Freedom of Information (FoI), shows a reluctance to reveal the embarrassing position the Mayor has put himself in by writing his shoddy letter and by his previous conduct in relation to Chesterfield High School. 

In the absence of a reply to the FoI request from government, we can draw conclusions from the falsehoods and special pleading in the Mayor's letter itself, as I will explain below.

Firstly, we have the timing of the letter, sent on 22 July 2015 - the day before the release of the response to a FoI request here that would reveal the Council had paid the Mayor's legal bills.   That response contains the Council's justification for paying the Mayor's bills.  It says
"...The City Council are currently in discussion with the Department for Communities & Local Government (DCLG) as to the possibility of the reimbursement of cost to the City Council given the issue arose as a result of the adoption of a new governance model..."

Those "discussions" had only commenced the previous day, in the form of that mayoral letter.  But the Employment Appeal Tribunal had handed down it's judgement back in April 2015 - April 14th judgement here.  Why wait three months to start those "discussions" with government?  Was there a need to create a justification just the day before the truth came out about who paid the Mayor's legal bills?  But let us look now at the evidence of the letter itself.

Crass and confused - Mayor's letter to Tory chums

First, some context: love him or loathe him, Joe Anderson is the political representative of the City of Liverpool in discussions and negotiations with government.  And way beyond any mayoral misdeeds, we depend on him to have a clear channel to government so that government understands the consequences of the brutal cuts they are making to the funding for our vital services.  There should be no room for any doubt about the effects that those cuts will have and are having.  It is important that the Mayor has credibility with government, that he is believed.

So it is very disappointing when he jettisons that credibility and sends a shoddy and self-serving letter to a government Secretary of State.

Start with one example.  Joe Anderson says "...the damages were reduced by an Employment Appeal Tribunal ...".  Not so.  It was he who made the appeal against the original Employment Tribunal's judgement.  The appeal was dismissed.  The Employment Tribunal had decided he was not entitled to any compensation, or "damages".  The Appeal Tribunal simply upheld that decision.   I think that only somebody writing in haste and being reckless with the truth would have made such an error.

More seriously, the letter relies on the mistaken, or perhaps disingenuous, assertion that the Tribunal, and then Appeal Tribunal, cases engaged with the interpretation of Section 10 of the Local Government and Housing Act 1989.

He talks about "receiving payment for the equivalent rate of 208 hours per year which is a facility laid down in statute."  No.  There is no right to paid leave of absence from an employer in order to perform the duties of an elected member of a local authority.  The 1989 Act which Joe Anderson refers to does not give ANY rights.  Instead it imposes a cap, or limit, on any authority that wishes to give an employee paid time off to fulfil duties as an elected member of a local authority.  (The limit is 208 hours per year.)

And the record of the Employment Tribunal and of the Employment Appeal Tribunal show that the claim from Joe Anderson had nothing to do with the limit of the paid time off which he had been granted.  The issue was whether the school had the right to terminate his employment.  Both tribunals agreed the school governors would have been  justified in terminating his employment (although the school got the procedure wrong)  and their reasons had nothing to do with the 1989 Act and had nothing directly to do with Anderson's change of status from Leader to Mayor.

Anderson's letter claims that "The school had taken this unilateral decision to dismiss me based SOLELY (my emphasis) on the grounds that I had become Mayor of Liverpool."  Yet paragraph 28 of the Appeal Tribunal judgement contains the more substantial reason for dismissal, that "It does not appear to be an appropriate use of school funds to pay you additional money, particularly where you have not provided any services to the school since May 2010."

The only relevance of the 1989 Act (the one that puts a cap on paid time off) is that it appears to have been misunderstood by the school governors.  Although they had already decided, on 23 May 2011, that they wanted to terminate Anderson's contract (paragraph 19), it appears that they had the mistaken belief that his employment was protected by the 1989 Local Government and Housing Act.

When the City Solicitor wrote to the school on 3rd July 2012, suggesting that the cap of 208 hours no longer applied as Anderson was the Elected Mayor - an implicit request for more cash for the Mayor - the school appears to have been prompted to conclude that they no longer had any obligation to continue the employment.  That would have been the correct conclusion, but from the wrong interpretation of the law.

Yet we have the Mayor of Liverpool, in his letter to government, seriously claiming that "a precedent has been set whereby an employer can terminate employment solely on the grounds of an individual being elected to the office of Mayor..."  And then "...the ruling essentially now sits as a test case with implications for all of local government...".  So he thinks DCLG should share the legal costs.

This is a very strange picture which the Mayor and his officers are trying to portray:  in the public interest, the Council has taken necessary steps to fight in the tribunals for the clarification of the law so that the employment rights of elected mayors are tested and, now and only now, the government is called on to pay the bills and make corrections to the law.

To entertain that picture would require a massive suspension of disbelief.  Firstly, the tribunals themselves saw no ambiguity in the law and, indeed, the reported grounds of Anderson's appeal did not contain any challenges to the 1989 Act - instead he challenged the conclusion that he was entitled to no compensation because the school would have had the right to terminate his employment if only they had got the procedure right.  The principal justification for that dismissal was that it was an "inequitable" arrangement: Anderson was receiving payment for no value to the school.  That would have applied whether he had been Mayor or just Leader of the Council.

And the picture of a necessary journey through the  tribunals to clarify the law is spoiled by the fact that the Mayor and his officers did not, at first, seek to clarify the law - the application of the 1989 Act to elected mayors.  They sought to bypass it.  The City Solicitor's letter of 3rd July 2012 claimed that the 1989 Act did NOT apply.  It would follow that the school could pay more cash to Joe Anderson.  If there ever had been a reason to seek legal clarification of that Act with government, then the right time to do so was then, in July 2012.

After the event, we know that the attempt to extract more cash from the school to give to the Mayor was misjudged: the school, quite rightly, wanted to terminate the arrangement, not be given permission to increase the size of its investment!  But if the school had been willing to pay up, would we have heard any more about the need to bring a "test case" on behalf of the employment rights of all once and future elected mayors?

So will the Tory chums provide that alibi?

So far, the DCLG continues to delay a decision on handing over any details of its response to Anderson's letter of 22 July.  They say they are consulting a "third party" over disclosure.  I think that third party can only be Liverpool City Council. 
Now, I can see reasons why DCLG would like to keep Mayor Anderson sweet: he has delivered for them on the constitutional changes they wanted for Liverpool and for Liverpool City Region.
Even so, it would take an incredibly skilled and creative Spin Doctor to fashion a credible and favourable narrative out of the deeds and words of our elected mayor.  In due course we will see if such talents are deployed to help him out.