Union success in a judicial review of government plans to scale back the civil service compensation scheme (CSCS) could delay the implementation of the changes, but will not necessarily stop them.
The Public and Commercial Services union (PCS), the senior civil service union FDA, and Prospect union have announced they will seek a judicial review of planned cutbacks to the CSCS after accusing the government of failing to seek a previously promised negotiated agreement with the unions on the form of the changes to be made.
In a bid to save £500m over the next three years the government plans to cap redundancy packages at a maximum of two years’ salary for employees earning £25,000 or more – civil servants who have worked for 20 years at Whitehall are currently entitled to three years’ pay. People who rejoin the Civil Service after receiving a severance payment will have to pay some of the money back.
The PCS said government ministers pledged to reach a negotiated agreement for the CSCS cutbacks with the unions, but have subsequently cancelled four meetings in the past two months.
Stephen Hocking, partner and head of the public law team at Beachcroft law firm, told Personnel Today: “If the unions win the judicial review it doesn’t mean the changes can’t be imposed at all, it just sets the clock back. The government would have to sit down with the unions and try and reach an agreement.”
But Hocking added the government could defend its actions during the judicial review, and renege on any promise it is alleged to have made regarding a negotiated agreement, by arguing that it would never have been possible to reach an agreement between the two sides.
He said: “The trouble is if the government has a good reason for changing its mind then they can do that. The questions for court will be: was the union actually promised the meetings they say they were promised? If they were, has the government got a good enough reason to now proceed in another way?
“If the promise was to reach an agreement then there might be circumstances where the government says: ‘We just wouldn’t be able to agree. We have tried but we will now just have to enforce it.'”
A PCS spokesman told Personnel Today if the government continued to refuse to negotiate with the unions it would use the judicial review to argue that the changes should be implemented not through a parliamentary order as the government wishes, but through a parliamentary act – forcing the government to have the changes debated in parliament and to receive a positive vote in favour of the plans, before they could be implemented.
Stephen Simpson, employment law editor at XpertHR, added: “The unions are saying that they have not been properly consulted and that changes to the scheme can only be made after they have been approved by Parliament.
“Therefore, the union may argue in the judicial review that the government’s actions are procedurally improper (because of its failure to consult properly with the union) and that it has gone beyond its powers (by seeking to change the compensation scheme without going through the parliamentary process).”
A Cabinet Office spokeswoman said: “From the beginning, the Cabinet Office has been clear about the process. We put our proposals to the unions formally on 31 July in the document Fairness For All, and asked for the unions’ formal response. We also invited comments from civil servants and others. Following this, a number of amendments have been made, including providing extra protection for the lowest-paid civil servants.”