On 27 May 2011, the Court of Appeal handed down its judgement in
the case of R on the application of Sharon Shoesmith v OFSTED and
others, upholding Ms Shoesmith's appeal against the decision of
the High Court in respect of the actions of the Secretary of State
for Education and Haringey LBC, but dismissing it against
OFSTED.
The case was brought by Ms Shoesmith (Haringey Council's former
Director of Children's Services) following her dismissal after
the death of Baby P. Ms Shoesmith alleged that she had been
dismissed without any proper process and that she had first learnt
of her dismissal by watching a television interview with the
Secretary of State at the time, Ed Balls. Previously, in April
2010, the High Court had dismissed a judicial review application by
Ms Shoesmith alleging that the Secretary of State, OfSted and
Haringey Council had acted unlawfully in dismissing her.
The Court of Appeal held that Haringey Council's decision to
dismiss Ms Shoesmith for gross misconduct was open to judicial
review and that the dismissal was unreasonable. In addition, the
Court of Appeal also determined that the Secretary of State's
direction to remove Ms Shoesmith from her post was unlawful.
Although there had been an element of urgency to the decision, it
was held that allowing Ms Shoesmith to answer the charges against
her would not have delayed the process significantly and she should
have been afforded this opportunity. The ruling also stated that
the Council's procedures were "tainted by
unfairness". Lord Justice Kay said "Whatever the
shortcomings might have been (and, I repeat, I cannot say) she was
entitled to be treated lawfully and fairly and not simply and
summarily scapegoated".
Ms Shoesmith has also submitted a claim of unfair dismissal against
Haringey Council to the Employment Tribunal, which has been stayed
pending the outcome of the judicial review process. However, the
Court of Appeal found that the justice of the case required a
decision on the merits. In terms of relief, a declaration was made
that her dismissal was unlawful. The Court of Appeal was satisfied
that it was also entitled to make an award of compensation.
However, they will need to hear further submissions from the
parties before being able to determine the appropriate award. The
Court commented that the outer limits of the award that may be made
are, at the low end, the compensation may be for 3 months loss of
salary and pension, to reflect her contractual notice period, and
at the high end could include compensation to reflect the period of
loss (including loss of salary and pension) until she resigns or
her tenure of office is lawfully terminated.
The fact that the Court of Appeal has allowed the dismissal of an
office holder to be amenable to judicial review extends the
circumstances in which judicial review proceedings may be used to
challenge the dismissal of office holders within public sector
organisations. For a local authority, this would include the Head
of Paid Service, Chief Finance Officer, Monitoring Officer and the
Director of Children's Services or Director of Social Services,
but might also include other chief officers of the Authority.
Public sector bodies should therefore be conscious, when dismissing
office holders, not only of their legal obligations in respect of
employment law, but also in relation to their duty to exercise
their public functions lawfully and fairly.
The current Secretary of State for Education, Michael Gove, has
stated that he intends to appeal the ruling.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.