The Shoesmith dismissal

After the death of Baby P, the secretary of state for children, schools and families asked Ofsted to produce an urgent report into the child safeguarding arrangements within Haringey. Acting on the contents of that report, the secretary of state issued a direction under the Education Act 1996, s 497A(4B) appointing others in place of the director of children and young people’s services (DCS) and her deputy with immediate effect. A panel of Haringey’s councillors decided shortly afterwards that the DCS should be dismissed summarily with no compensation.

In R (Shoesmith) v (1) Ofsted (2) SoS for Children Schools and Families (3) LB Haringey [2010] All ER (D) 162 (Apr), the claimant, who had held the post of DCS, made applications for judicial review against Haringey, her employer, and others. Her complaint against Haringey was that it had conducted processes which breached principles of natural justice.
One question addressed by Foskett J’s extensive judgment was how a local authority employee who (on account of the particular post held) is also a statutory office holder, can enforce or protect their right not to have their contract of employment unfairly or wrongfully terminated by their employer as a result of a decision by central government in relation to the statutory office.

Unfair dismissal first

The claim against Haringey was dismissed, in essence on the grounds that public office holders who have the right to claim unfair dismissal should use that as their remedy of first resort. This was not because they do not have a right to bring judicial review proceedings, but because it was inappropriate to grant relief in such applications before the “far more convenient” alternative remedy had been exhausted. It followed that public office holders who are unable to bring a claim of unfair dismissal, eg if they lack a year’s service, may legitimately seek judicial review as their first remedy.

Shoesmith also raises some interesting questions of what issues might be key in any tribunal proceedings on similar facts:

Some other substantial reason

In unfair dismissal claims, employers must show they had a potentially fair reason for dismissal. It seems very likely that, in any case like Shoesmith, the employer would assert “some other substantial reason” for the dismissal (Employment Relations Act 1996, s 98(1)(b)).

The tribunal would then have to consider whether the fact that the circumstances in which an employer like Haringey found itself were effectively imposed upon them by the secretary of state’s direction is sufficient to amount to a potentially fair reason for dismissal. This may be analogous to cases like Scott Packing and Warehousing v Paterson [1978] IRLR 166 and Grootcon (UK) v Keld [1984] IRLR 302, where an employer is requested or required to dismiss an employee by a third party such as a major customer.

Dismissals at the behest of such third parties may be fair; but the mere fact that a valued customer insists upon dismissal will not necessarily be enough. The employer must still show it acted reasonably in all the circumstances by dismissing.

Accountability

Another thing the tribunal might need to consider is whether the concept of “accountability” has any (and if so, what) relevance in the employment context. Foskett J said this issue may be important for the employment tribunal, and made a number of interesting observations. In summary:

• Traditionally, ministers of state are expected to resign if their department is found significantly wanting, even if the problem was not their personal responsibility. There was “political accountability” within Haringey, because the leader of the council and the lead member both resigned.
• Political accountability is one thing, but accountability on the part of someone employed to do something is arguably another, with matters of professional reputation, livelihood and considerations of a contractual and financial nature also in play.
• Were it found that the failures in the Baby P tragedy were not caused personally by the claimant, and she had in fact striven within the limits of the available resources to maintain and improve standards, most fair-minded people would say it was “unfair” on a personal level that she should be removed from her position. However, if “fairness” is judged by reference to someone having to “carry the can” for the failings of a system then, as head of that system, it would not necessarily be “unfair” that she was replaced.

The judge commented that there may need to be a debate about whether individual responsibility for a collective failure is what is to be expected of someone in positions such as the DCS and whether it justifies summary dismissal. Such a debate would be of interest to anyone thinking of taking on such roles—and maybe to those currently in office.

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