Is the sacking of Sharon Shoesmith legal?

To the delight of many, including the local MP, Sharon Shoesmith has been sacked by Haringey Council. According to the council’s press release, she was dismissed without compensation or pay in lieu of notice.

Now, as any HR manager or employment lawyer will tell you, the only circumstances in which you can sack people without paying them notice is where their behaviour amounts to gross misconduct. In such cases, whatever the employee has done is deemed to be so bad that it effectively nullifies the employment contract, thus releasing the employer from contractual obligations, such as paying in lieu of notice.

So was Sharon Shoesmith guilty of gross misconduct?

I’m not sure that she was.

Amidst all the hysteria and righteous indignation, there is, at the very least, enough doubt to give Sharon Shoesmith’s defence some ammunition. As PDF summarises:

  1. Baby P was subjected to low level abuse and neglect by his mother and stepfather of a kind that was sufficent to raise suspicions amongst police and social workers but not to provide the evidence and legal grounds necessary for the council to obtain a care order, as its legal advisors indicated on 25th July 2007, and…
  2. There was a sudden, unexpected and ultimately fatal escalation in the degree of abuse visited on the child by one of more of the adults living in his household, the presence of two of whom (the mother’s boyfriend and his brother, the supposed lodger) was not known to the authorities until after the child’s death.
  3. Without social workers being aware of the presence of these two individuals in the household, there was no way that the death of Baby P could have been prevented, given that two police investigations into what appeared to be physicial abuse of the child failed to turn up sufficient evidence either for a prosecution or for care proceedings.

While you might want to take issue with some of these points, the case is clearly not as black-and-white it has been painted in the tabloids.

Add to that the fact that Sharon Shoesmith had never been a social worker. She ended up managing social services after the government’s decision to make local authorities combine education and children’s social services into new super-departments. An ex-teacher and Haringey’s former Director of Education, Sharon Shoesmith found herself in charge of a huge army of social workers. Sure, it was up to her to get to grips with her new responsibilities and to understand the work of social services, but in a huge and diverse department like Haringey Children’s Services, she had little hope of being on top of all the day-to-day operations. These super-departments are still relatively new. I doubt that any local authority has yet fully worked out how to run them effectively. The government, therefore, must bear at least some of the responsibility for creating the chaos which led to this situation.

While individuals should be held responsible for their actions, as Dave Osler says, some of the factors which led to the death of Baby P were systemic. It is very difficult to pin the blame for his death on one individual, apart from those who actually killed the poor child.

Yes, Sharon Shoesmith made mistakes and there were things she could have done which might have prevented the death of Baby P. But gross misconduct? Nah!

I suspect that Haringey’s management took a calculated risk. Directors in local government are usually on at least three month’s notice. With her £100,000 salary, the council would therefore have had to pay Mrs Shoesmith at least £25,000 to go. Realising that any payment would be politically unacceptable, the council had no choice but to dismiss her for gross misconduct, hoping that the threat of more bad publicity will be enough to deter her from going to an employment tribunal.

It will be interesting to see whether that risk pays off. Sharon Shoesmith, whose career is in ruins and who, at age 55, will probably never work again, may decide that she has nothing more to lose by taking her former employer to court.

Were she to do so, I would not want to bet against her winning her case.

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21 Responses to Is the sacking of Sharon Shoesmith legal?

  1. jameshigham says:

    I’m a bit out of this issue but don’t think you’d get too many takers for that point of view, Rick.

  2. Hi Rick,
    An employment contract is a contract not some political inconvenience. It is difficult to evidence gross misconduct in many situations and this may well be a case in point. The payment in lieu of notice would be payable net of tax and substantially less than any unfair dismissal claim which might now arise.
    JKA

  3. Rick says:

    We shall see, James, we shall see.

  4. Mark Pack says:

    I think the case against Sharon Shoesmith is much wider than the A/B/C chronology you’ve quoted. Even if you agree with that, the Ed Balls ordered investigation threw up a huge number of issues with how the department was being run.

    For example, the Serious Case Review wasn’t done properly, and that should be (in my view) a serious matter. How the death occurred which triggered the review doesn’t alter the seriousness of the failure to do the review properly. I think similar points apply to many of the other findings, which overall were of a department badly run and badly organised.

  5. Rick says:

    Maybe so, but I bet you’d get those issues coming up if you did a review of any Children’s Services department in a large London or metropolitan borough.

    Local authorities and, indeed, many other organisations, are full of badly run and badly organised departments.

    The findings of the various investigations may point to to inefieiency and poor performance in some areas but I’ve seen nothing that amounts to gross misconduct.

  6. PMhr says:

    Without knowing the allegation Ms Shoesmith it is difficult to say. As someone with substantial experience of working in social services I know that the role of Director of Childrens Services and social work in general is heavily regulated and local authorities also have very detailed codes of conduct. For instance failing to discharge obligations in accordance with statute, professional standards or contract of employment without sufficient cause (or similar wording) is cited in a number of local authority disciplinary procedures I’ve seen as a reason for potential gross misconduct within a social services environment and given what is going on I’d guess it was something along those lines.

  7. Bina says:

    As I understand it qualified social workers have been concerned for some time with the way services are managed at Haringey. Their voices evidently were not heard or dismissed. Whether Shoesmith is the only person ‘culpable’ or is in fact being scapegoated is quite another thing. What I’d lay money on is that a fair score of people are doing everything they can to cover their **ses. The Shoesmith case is a sideshow designed to take the lights off the real culprits.

  8. CherryPie says:

    I am inclined to agree with you. I don’t think she was guilty of gross misconduct either more a case of a victim of trying to apply imposed rules, which means you are not allowed to use common sense!

  9. tbrrob says:

    I think you’re right Rick. My feeling is that we need to grow up about these issues and face the music. Cos there’s really very little the government can do to stop child abuse outright. She’ll win her case.

  10. astley says:

    Maybe Sharon Shoesmith should have adopted the Speaker of the House of Common’s defence that “no one told me what was going on”.
    It seemed to work for him. In my opinion there are so many agencies involved in child protection issues that her employer could not justify gross misconduct.

  11. Pingback: Haringey’s gets new £200,000 children’s services boss, « Flip Chart Fairy Tales

  12. PeterW says:

    with respect, JKA, pay in lieu would normally be payable gross, unless the contract said something about it, and compensation for unfair dismissal limited to £63,000, so pay in lieu would be a relatively significant figure.
    I would like to know just what term of her contract Ms. Shoesmith broke. There was some news of a disciplinary hearing; I just hope the managers were not making up the rules as they went along.
    Unless she accepts that she was in serious breach of contract, I would be glad to see Ms. Shoesmisth go for it..

  13. Rick says:

    Peter, isn’t the first £30k of a payment usually tax free, if it is by way of compensation for redundancy or for the employer not giving the required notice? I think, had Sharon Shoesmith been paid off properly, she would have been given her money tax free.

    Like you, I think she’s got a good case. I suspect that the managers may indeed have made up the rules in that they were responding to a tabloid outcry, rather than to specific and systematically collected evidence of misconduct.

    I’m rather looking forward to this one coming to court.

  14. From yesterday’s Guardian:
    “A council statement published on 9 December said: “Ms Shoesmith will not be returning to work in Haringey. She will not receive any compensation package. She will not receive any payment in lieu of notice.”

    It said councillors felt a “fundamental loss of trust and confidence in Ms Shoesmith”.

    Lawyers acting for Shoesmith are to test whether the dismissal is lawful. If the appeal, which starts this week, is successful, Shoesmith could be in line for a payment in lieu of notice of three months pay – around £30,000 – and, should the case go to employment tribunal, a further payment of up to £63,000.

    It is believed that Shoesmith’s case hinges on whether Haringey council followed appropriate disciplinary processes, and whether it was within its rights to dismiss her without compensation. Normally, sacking without notice is only allowable in cases of gross misconduct, such as theft, fraud or serious bullying.”

  15. Sal says:

    I dunno, I think fiddling your Ofsted inspection probably does count as gross misconduct.

    http://www.guardian.co.uk/education/2008/dec/06/ofsted-baby-p-inspector-chief

  16. Rick says:

    I’m not sure that Ofsted has much credibility left after this case. Its original report was glowing and it only did another investigation and changed its mind after the media storm broke.

  17. AJ says:

    Of course, there is the matter of legal fees to consider… if Harringey stick it out, don’t settle, and let it go to a tribunal it’ll be costing Ms Shoesmith a small fortune in costs, probably £20K + Vat, and more if it goes to appeal. Even if she wins she won’t be awarded these and they’ll have to come out of her spoils. It was pretty obvious she was going to go for it, as someone earlier said her career is in tatters, so what does she have to lose?

    The question now will be how hard they fight her, and whether she has the funds to carry on fighting them… so often in these cases the ultimate winner is the one with the most money.

    Good luck to her, from what I’ve read she handled it badly and deserved to go, but I can’t help but feel she’s borne rather more of the public venom and anger than she deserves and has rather been hung out to dry.

    • Rick says:

      Interesting point AJ. As you say, it costs money to fight these cases and in most of the ones that go to several stages, both sides have some sort of financial backing. I wonder if Sharon Shoesmith is getting any help on the quiet from her union.

      What makes you so sure the tribunal wouldn’t award her costs?

  18. AJ says:

    As far as I know tribunals don’t award costs… win or lose each side pays their own. She may have help from a union, or even have it as a legal option on her household insurance.

    It essentially comes down to maths, there will be a cut off at some point where the council decide that it will be cheaper to pay her off than to fight her, and similarly she will decide it will be better to take £x rather than continue to fight them…

    Unless (as is likely) each side want to win to vindicate themselves and their decisions… that will be an expensive point of principle to fight for and financially the council might be better placed to win than her.

    She has my sympathy, I’m sure she’s discovering that justice is not always achieved on a level playing field.

    • Rick says:

      You’re right, they don’t usually but they have done when they are particularly annoyed by one side or the other. On rare occasions, they’ve even been known to award costs against the winner, on the basis that the claim, while legally sound, was vexatious.

      This is such an unusual case that anything could happen. If you get tribunal members that decide the government and Haringey need to be taught a lesson, they might award costs.

      Of course, this is idle speculation. You are right that this will be a legal and financial arm-wrestling contest in which whoever tires first will probably lose.

  19. AJ says:

    Yes, it is an unusual case and it will be interesting to see how it plays out… Haringey will have the advantage in that they’ll have their own legal and HR team, and of course all the files they need… then again, if she has the funds and the sense, she may have hired someone really good to represent her… I hope so for her sake, as in most things in life, you get what you pay for!

    It’s a great shame that these things so often come down to money, rather than justice.

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