BAR guidance for Managers and All Employees

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What is the BAR?

The Business Appointment Rules (BAR) is a contractual set of rules that apply to all Crown servants (including Civil Servants) that set out the criteria and processes involved in assessing whether there are any concerns related to appointments/employment sought by existing and former employees. Under the BAR restrictions on taking up appointments/employment may be required.

Where can individuals find more detailed information on the BAR?

The BAR is covered in the Civil Service Management Code. Details of the rules and their application can be found at:

http://acoba.independent.gov.uk/former_crown_servants/rules_and_guidance_civil_serv ants.aspx

What is the aim of the rules?

The aim of the Rules is to avoid any reasonable concerns that:

  • a civil servant might be influenced in carrying out his or her official duties by the hope or expectation of future employment with a particular firm or organisation, or in a specific sector; or
  • on leaving the Civil Service, a former civil servant might improperly exploit privileged access to contacts in Government or sensitive information; or
  • a particular firm or organisation might gain an improper advantage by employing someone who, in the course of their official duties, has had access to:
    • information relating to unannounced or proposed developments in Government policy, knowledge of which may affect the prospective employer or any competitors; or
    • commercially valuable or sensitive information about any competitors.

Who do the rules apply to?

The Rules apply to all Ofgem employees who intend to take up an outside appointment or employment after leaving the Civil Service and continue to apply for a period after the last day of paid Civil Service employment (1 year in most cases for bands A-E, and 2 years for SCS).

This includes current employees at Ofgem, and former employees who have left Ofgem within these timescales.

What do Ofgem employees need to do?

All Ofgem employees, and former employees within the timescales mentioned earlier, are required to notify Ofgem of an intention to accept an outside (of the Civil Service) offer of employment before they accept the offer.

As an applicant, it is the employee’s responsibility to notify Ofgem of an outside appointment and to complete a BAR application.

Current Ofgem employees must notify their line manager.

Former Ofgem employees must notify the HR People Centre (PeopleCentre@Ofgem.gov.uk)

Upon notification, Ofgem will assess whether an application under the BAR is required.

What about former Ofgem employees?

The Rules apply to all Ofgem employees who intend to take up an outside appointment or employment after leaving Ofgem and the Civil Service. This continues to apply for a period after the last day of paid Civil Service employment (1 year in most cases for bands A-E, and 2 years for SCS). This means that an application may still be required to be made if a former employee is offered a new role within the above time periods that is outside of the Civil Service.

When is a BAR application required?

For those in SCS pay bands 2 and 3 an application under the BAR is required in all circumstances where the individual is leaving Ofgem (and the Civil Service) and is immediately moving into a new role.

For SCS pay band 1 and below an application is only required if the individual’s circumstances match one or more of the following:

  • They have been involved in developing policy affecting their prospective employer or have had access to unannounced Government policy or other privileged information affecting their prospective employer, at any time in their last two years in the Civil Service.
  • They have been responsible for regulatory, or any other decisions, affecting their prospective employer, at any time in their last two years in the Civil Service.
  • They have had any official dealings with their prospective employer at any time in their last two years in the Civil Service.
  • They have had official dealings of a continued or repeated nature with their prospective employer at any time during their Civil Service career.
  • They have had access to commercially sensitive information of competitors of their prospective employer in the course of their official duties.
  • The proposed appointment or employment would involve making representations to, or lobbying the Government on behalf of, a new employer.
  • The proposed appointment or employment is consultancy work, either self-employed or as a member of a firm, and they have had official dealings with outside bodies or organisations in their last two years in the Civil Service that are involved in their proposed area of consultancy work.

When will the BAR not apply?

Not every employee (and this includes all SCS including SCS 2 and 3) will be required to complete an application form and submit it to Ofgem for approval.

For example, an application is not needed where:

  • The individual is moving to a job within the civil service.
  • They are leaving the workforce (e.g. retirement, travelling (where no employment has been secured for their return)), and,
  • The criteria noted above are not met.

Employees should contact the HR People Centre if they are unsure about whether an application is required.

How will an application be considered?

When an employee informs their line manager of their intention to leave, the line manager, (following consultation with the HR People Centre), will inform the employee of whether an application is needed.

The employee will complete and submit the application to their line manager. The line manager (on receipt of the application) will consider the application and submit to the HR People Centre.

The employees (referred to as the applicant for these purposes) position at Ofgem will determine whether further approval is required, and this is determined below:

  • For most applicants, approval is generally given by your Deputy Director or Director.
  • For SCS1 applicants, approval is generally given by the Chief Executive.
  • For SCS2 applicants, approval is generally given by the People and Remuneration Committee.
  • For SCS3 applicants, approval is also required from the Advisory Committee on Business Appointments (ACOB) in addition to the People and Remuneration Committee.

How long will it take for an application to be considered?

The People Centre (on receipt of a fully completed application form) will provide a decision on the application (having consulted with the relevant HR Business Partner) within 15 working days of receipt of the completed application.

Where the application has to be sent to the People & Remuneration Committee (PRC), a decision will be provided within 20 working days of receipt.

Where complex cases have been identified, the timescales may be longer and, if this is the case, the People Centre will communicate this to the applicant.

How will it be decided whether restrictions are required?

Each case will be considered on its merits and in accordance with the relevant rules and guidance.

In general terms, the more contact and knowledge the applicant has about the prospective employer and/or its competitors the greater the actions required. This will include consideration of:

  • the extent to which the applicant has information on prospective legislation/regulatory action which might benefit, or disadvantage competitors of, the prospective employer.
  • the extent to which the applicant has been involved in policy discussions leading to a decision of considerable benefit to the prospective employer.
  • how much of the contact was in the course of official duties?
  • how significant has the applicants contact been with the prospective employer or its competitors; the connection between the new job and previous official duties; and
  • whether there is a risk of public criticism that the applicant might have scope to exploit contacts in Ofgem for commercial purposes.

The following matters may also be considered:

  • The pay band – at what level someone has been operating?
  • Any time lapse between dealing with relevant entities and their date of end of service – have they been dealing with relevant entities recently or was it more than a year ago?
  • What access did they have to sensitive information?
    • About the new employer’s competitors 
    • Government policy
    • Regulatory policy/decisions
  • How much of what they have been dealt with is in the public domain?

For those engaged in Contractual Relationships (procurement/contract managers)

If, during official duties, the applicant has had previous dealings with the prospective employer of a contractual nature, consideration should be given to whether:

  • they were acting as a member of a team or taking sole or joint responsibility.
  • the prospective employer benefited substantially from such dealings.
  • contact was direct or indirect (i.e., through Employees for whom they were responsible, whether they normally worked for the applicant).
  • they dealt with the receipts of tenders from the prospective employer.
  • they dealt with the award of contracts from the prospective employer.
  • they dealt with the administration or monitoring of contracts with the prospective employer.
  • they gave professional or technical advice about such contracts before or after they were awarded.
  • they were involved in dealings of an official but non-contractual nature with the prospective employer.

What sort of restrictions might be required?

Restrictions can be applied to the applicant during their notice period and/or in their new role.

Wherever possible Ofgem seek to address any issues prior to the applicant’s departure. Restrictions applied during the notice period may include:

  • immediate ‘gardening leave’ – the applicant is asked to leave see out their leave at home with no/limited access to work.
  • restricted duties – the applicant is removed from sensitive work and given alternative or reduced duties for their notice period.
  • reallocation of duties – the applicant is asked to complete their notice period in a different team

Where necessary, restrictions may also be proposed to the work that an applicant can do in their new role. These will generally include:

  • A restriction on lobbying Ofgem (as defined in the Business Appointment Rules);
  • A restriction on advising on a bid with, or contract relating to the work of, Ofgem; and
  • In all cases, a restriction on drawing on any privileged information (as defined by Advisory Committee on Business Appointments) available to the applicant as a result of their role at Ofgem.

In some cases, further restrictions might be necessary. These could include:

  • A restriction on certain activities (such as involvement in particular areas of the new employer’s business);
  • A waiting period before the new role may be taken up; or
  • Other conditions as appropriate.

All situations are, of course, different and the restrictions noted above do not, therefore, provide an exhaustive list of possible restrictions.

What happens when an application has been considered?

Applicants will be informed of the outcome of their application, including any conditions that have been proposed and a summary of the rationale for these.

Will an applicant be able to discuss their application and any proposed conditions?

Yes – an applicant will be able to make any representations they wish in relation to their application. In the case of applications that require PRC approval, whilst these representations will be shared with the PRC for its consideration, this will not normally include direct engagement with PRC members.

Who will inform the prospective employer of the outcome of the application?

Ofgem are required to inform the prospective employer of an applicant under the Business Appointment Rules of Ofgem’s final decision, using the contact information provided in the application form. Ofgem will inform applicants before this happens.

Will any information about an application be published?

Ofgem will publish decisions in respect of the Business Appointment Rules for SCS2 and SCS1 staff on a quarterly basis using a standard template. Decisions relating to SCS3 staff are published by ACOBA.

 

The Civil Service Business Appointment Rules (BAR) Guidance

ANNEX

Employee notifies you of intention to leave Ofgem for another role

  1. Is the employee moving within the civil service?

Yes – the BAR does not apply. End process, or:

No – consider the BAR

  1. What pay band is the employee?

SCS pay bands 2 and 3, BAR application must be completed in all circumstances.

For other SCS pay bands, a BAR application may be required if one or more of the following criteria are met?

  • They have been involved in developing policy affecting their prospective employer or have had access to unannounced Government policy or other privileged information affecting their prospective employer, at any time in their last two years in the Civil Service.
  • They have been responsible for regulatory or any other decisions affecting their prospective employer, at any time in their last two years in the Civil Service.
  • They have had any official dealings with their prospective employer at any time in their last two years in the Civil Service.
  • They have had official dealings of a continued or repeated nature with their prospective employer at any time during their Civil Service career.
  • They have had access to commercially sensitive information of competitors of their prospective employer in the course of their official duties.
  • The proposed appointment or employment would involve making representations to or lobbying the Government on behalf of a new employer.
  • The proposed appointment or employment is consultancy work, either self-employed or as a member of a firm, and they have had official dealings with outside bodies or organisations in their last two years in the Civil Service that are involved in their proposed area of consultancy work.

None of the above criteria are met – BAR not required. Note decision and reasons and provide to HR People Centre. End process, or:

Yes, one or more criteria are met – application form to be completed by employee and returned to line manager.

  1. Has the Application form been completed?

Yes, the application form was completed – countersign application form. Band A-E, SCS team leader sign off. SCS1 – director sign off. Send application to HR People Centre (who will consult HRBP if necessary). HR and line manager to discuss potential restrictions. End process, or:

No, the application form was not completed – Contact HR People Centre (who will consult HRBP if necessary). HR and line manager to discuss potential restrictions. End process.

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