Dismissal of Director of Children’s Services held to be unlawful and void

 

EMPLOYMENT LAW UPDATE June 2011 (1)

 

The case of Sharon Shoesmith, the former Director of Children’s Services with the London Borough of Haringey has been widely reported in the media and readers of this website will, no doubt, be familiar with the background to and history of it.  It is, however, worthwhile examining the basis of the recent judgment of the Court of Appeal in her favour. In doing so, it is important to remember that this stems from a judicial review application in the High Court rather than an unfair dismissal claim through an Employment Tribunal.

 

Sharon Shoesmith had been employed as the Director of Children’s Services at Haringey. Following the death of Peter Connolly (“Baby P”), the then Secretary of State, Ed Balls, removed her from this post, having received an urgent report by OFSTED into child safeguarding arrangements within Haringey. She was summarily dismissed by the Council shortly after, without pay in lieu of notice or compensation of any kind. Her internal appeal against this decision was rejected by the Council.

 

Her application to the High Court for judicial review against OFSTED, the Secretary of State and Haringey (regarding the procedures followed by them which led to her removal from office and subsequent dismissal) was initially rejected. She appealed against this decision. (She had also commenced proceedings in the Employment Tribunal (ET) but these have been stayed, pending the outcome of the judicial review proceedings). The Court of Appeal has now rejected her appeal in respect of OFSTED but has allowed the appeal in relation to the directions of the Secretary of State, which it found to have been vitiated by procedural unfairness, and to her dismissal by Haringey.

 

In relation to her claim against Haringey, the Court considered whether her treatment by the Council was amenable to judicial review and, if so, whether her application ought to be “entertained” in view of the alternative remedy available in the ET. In the initial decision, the judge had found that, as an “office holder” her dismissal was amenable to judicial review but that the alternative remedy in the ET should prevail. However, the Court of Appeal, whilst agreeing with the judge on the issue of amenability, found that he was wrong to defer to the ET proceedings and that this alternative remedy was not "equally convenient and effective" in view of the cap on compensation which applies to such claims. Her status as an “office holder”, as referred to by the Court, would appear to be based on the fact that she occupied the statutory position of Director of Children’s Services.

 

With regard to compensation, the Court directed this be decided between the relevant parties, with remittal to the High Court if agreement could not be reached between them.

 

This outcome is thus based entirely on procedural unfairness and not on any other consideration which would apply in an Employment Tribunal. On the face of it, this may raise concerns for local government employers – does it increase the potential for senior officers occupying statutory posts to seek to challenge any dismissal decision in this way in order to achieve a higher level of compensation above that available through an employment tribunal claim?

 

However, it would seem unlikely that this case would set any form of precedent, due to the very particular and unusual circumstances, including the direct intervention by the Secretary of State and the findings regarding procedural unfairness, which are likely to be unique to this particular case.

 

In any event, it is reported that the Government and the Council are likely to appeal the decision, so this may not be the end of the matter. Any further developments will be reported on this website.