Dismissal in response to Baby ‘P’ case was unlawful
An Ofsted inspection into the unit considered that there were a number of failings within the department, including “insufficient strategic leadership and management oversight of safeguarding services by Haringey councillors and officers”.
At the time of the dismissal, Ms Shoesmith had not seen a copy of the report and as a result, she could not provide her response to the allegations against her.
Ms Shoesmith appealed, by way of judicial review, against the decision to dismiss her and against the contents of the Ofsted report.
At first instance, Ms Shoesmith was unsuccessful. Last week, Ms Shoesmith’s further appeal was heard by the High Court.
The Court of Appeal rejected Ms Shoesmith’s challenge to the Ofsted Report, but determined that the dismissal was unfair and unlawful due to procedural unfairness. The Court concluded that, as with any other employee, Ms Shoesmith should have had the right to a fair procedure, which included her opportunity to comment on the report which contained the allegations against her. The Court accepted that the Council had knowledge of the unlawfulness of its actions, as Ms Shoesmith had addressed this in her appeal. The Council has been ordered to agree an appropriate level of compensation with Ms Shoesmith.
This is an extremely emotive issue. The media in this case was looking for someone to blame and Ed Balls provided Ms Shoesmith as the obvious candidate.
The case highlights the fact that even where it seems that an employer has no alternative but to dismiss an employee, this does not negate the need for a fair procedure. In this case, the Council did not follow any proper procedure and failed to allow Ms Shoesmith the opportunity to address the allegation against her. It also appeared that the decision was prejudged as Ed Balls confirmed her immediate departure over a week before she was dismissed.
It is worth noting that Ms Shoesmith’s compensation may not reach the extravagant sums speculated in the media. Procedural unfairness in a dismissal, where the outcome would have been the same in any event, usually limits compensation to the time it would have taken to follow a fair procedure.