States chief executive Boley Smillie recently revealed that senior officials had been ‘deliberately excluded’ from all disciplinary and capability policies, an arrangement which local experts said they had never seen before in the private or public sectors.
Mr Smillie has pledged to introduce formal procedures at the senior level of the civil service in the wake of the MyGov IT debacle, which wasted £21m. of taxpayers’ money.
Excluding senior staff from all disciplinary and capability policies was ‘extremely uncommon’, according to Lorna Pestana, group executive director at HR advisory service Law At Work.
‘I have never heard of any organisation that does not have disciplinary and capability to cover senior management,’ she said.
‘These are normally not contractual terms and it’s best practice to have them covered by general terms of employment.’
Mr Smillie’s damning report on MyGov did not explain why senior civil servants were deliberately excluded, and he has since declined to answer questions about how many officials are omitted and when the problem would be put right. He said it was an ‘unusual’ arrangement which created lack of clarity, increased risk and undermined accountability and transparency.
Ms Pestana was particularly surprised that senior officials had been omitted from standard practices deliberately rather than as an oversight.
‘That can only be a contractual term,’ she said.
‘You would fall within the standard terms unless you are deliberately excluded. I find that very odd. At the higher level, you would expect greater accountability and responsibility, not less.’
In the UK, senior civil servants must adhere to structured performance and capability frameworks, which make it clear that underperformance can lead to formal interventions, development plans and, in extreme cases, dismissal.
In his report on MyGov, Mr Smillie said it was ‘not uncommon in many organisations’ for senior leaders to be excluded from disciplinary and capability procedures which applied to other members of staff.
But one employment lawyer, who asked not to be named, said it would be unusual for any staff to be excluded from such procedures in the private sector.
‘However, in practice, it is rare for senior managers to go through a capability process,’ she said.
‘Large organisations don’t want an underperforming chief executive officer or chief financial officer in place for commercial reasons and overall organisational effectiveness, so there is normally a compromise agreement and a financial package agreed.’
She pointed out that the States’ own code of practice for disciplinary practice and procedures recommends that all employers in Guernsey should have disciplinary rules and procedures in place.
‘So it is surprising that this was not in place for their own senior staff,’ she said.
However, she agreed with Mr Smillie’s view that senior officials in the public sector would normally work within performance management practices separate from those applying to more junior members of staff.
‘In public sector organisations, disciplinary and capability policies are often agreed through collective bargaining with trade unions. At a senior level, they are often not part of the collective bargaining framework so are, therefore, not covered by those collectively agreed disciplinary procedures,’ she said.
Mr Smillie’s five-month investigation into the MyGov failure also found that performance management was not linked to delivery outcomes and that accountability for failure was unclear and inconsistently applied.
Although personnel changes were not included in his report, he has promised that there will be some, as well as a raft of reforms to project management, the reintroduction of chief officers of principal committees and reducing reliance on external contractors.
‘We will ensure there is a formal capability and disciplinary policy for senior leaders, setting clear and consistent standards for performance, conduct and capability,’ he said.
‘This will ensure there are defined mechanisms to address underperformance in a structured and transparent way.’