Judge’s ‘unease’ over Shoesmith ruling

I’ve now had time to read the judgement in the Sharon Shoesmith case and, while I was wrong about the outcome, it seems that I wasn’t as wrong as I initially thought. The judge ruled against Ms Shoesmith’s application for a judicial review, concluding that Ed Balls was entitled to remove her from her post. However, he also expressed concern about Haringey’s dismissal of Ms Shoesmith saying that the process “was flawed and liable to be declared unfair” (see paragraph 54 of the summary) and that “the hearing did not reach a fair procedural threshold” (see paragraph 529 of the judgement). He concluded: 

The overall impression gained of Haringey’s approach (perhaps understandable given all the external pressures) was that the sooner the Claimant was dismissed with no compensation, the better, and that everyone could “move on” once that had happened. However, simply because the Ofsted report was in the terms it was, and the Secretary of State acted as he did and he, others and various national newspapers called for the Claimant’s summary dismissal was no proper justification for taking such an approach and it created the appearance of an unfair process.

This will, as Mr Justice Foskett said, be ruled on by an employment tribunal. If the tribunal takes a similar view, Sharon Shoesmith may yet win her case against Haringay. This could leave us with the bizarre conclusion that Ed Balls was legally enititled to remove Ms Shoesmith from her post but that Haringey acted illegally when it dismissed her from its employment. The judge expressed concern about this contradiction: 

I will not disguise the fact that I have reached those conclusions with a lurking sense of unease.

I am not sure to what extent the inter-relation between the Secretary of State’s powers under section 497A and the contractual obligations of a local authority towards an employee who has to be removed from a position because of a direction under that section has been considered by Parliament. The Court is left having to try to fill a gap in the procedures that is not easy to fill. There is, as it seems to me, a danger that someone in a position such as that occupied by the Claimant will fall between two stools.

The law seems to allow the Secretary of State to look tough by sacking a Director of Children’s Services while leaving the local authority, as the employer, to do the dirty job of terminating her contract and paying out any compensation arising from the case. This is clearly bonkers!

As I have said before, this case highlights the pretend-localism of the British state. We can’t decide whether we want centrally or locally controlled public services so we end up with a hazy ambiguous muddle.

The newspapers who led the campaign against Sharon Shoesmith were quick to crow about Friday’s judgement. However, claiming that Ms Shoesmith has lost her case might be a bit premature.  This was only the first round. The case will now move on to an employment tribunal. There is enough legal and procedural ambiguity to ensure that this one will run and run.

Hat Tip: Daniel Barnett for the links to the judgement papers.

More press comments on the case:

Patrick Butler

Guardian Society

The Observer

Rosemary Bennett

Joan Smith

Lauren Higgs

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