The Shoesmith case – some perspective please

OK – let’s get one thing straight. The Court of Appeal did NOT say that Sharon Shoesmith was ‘unfairly dismissed’ as has been reported by various media sources. This high-profile case was nothing to do with ‘unfair dismissal’ in the sense that HR knows it.

The Court of Appeal decision was a judicial review of Haringey Council decision summarily to sack her  – a public law remedy concerned with legality of decision making and quite different from the statutory protection against being unfairly dismissed. Ms Shoesmith’s employment tribunal case is actually on hold pending the outcome of these proceedings.

The facts in this case are by now well known. Ms Shoesmith was sacked by Haringey following the horrific death of Baby P. There was no proper process followed because, said the council, of the pressure exerted by the then Secretary of State Ed Balls (who arguably doesn’t come out of this with much credit). The Court of Appeal said that the council’s decision could be judicially reviewed, notwithstanding that employment tribunal proceedings are pending. Its decision to sack Ms Shoesmith was unlawful. Despite a degree of urgency, allowing her to answer the charge would have involved only a slight delay. As the accountable individual she should have been given the chance to explain her actions. She was not - hence the decision against Haringey.

Two other aspects of this decision are worth noting: the court’s comment on the ‘trust and confidence’ issue and the judge’s concluding remarks:

1. While at pains to stress that nothing he said should be taken as expressing a view on the outcome of the tribunal case, the judge did make some interesting observations about the implied term of ‘trust and confidence’ which, despite his caveats, may indeed end up influencing the eventual tribunal decision. Haringey believed that summary dismissal was appropriate because Ms Shoesmith had breached the implied term of trust and confidence – and it used this as justification for no notice or payment in lieu. The Court of Appeal commented that this was wrong and resulted from a misunderstanding of the scope of this implied term. While Haringey had ‘lost confidence ‘in Ms Shoesmith in the broadest sense of that word, actually what they were concerned with was her competence and capability rather than trust and confidence in the correct legal sense. If Haringey’s case was framed in that way it would make it ‘far more difficult to justify summary dismissal, as opposed to dismissal on three months’ contractual notice, at common law. That is no doubt why, from the outset Haringey has sought to put its case on the “trust and confidence” basis’.
2. The judge concluded by saying that he could not leave the case without saying something about the way in which Sharon Shoesmith had been treated – comments which should be noted by all politicians. He quoted a judge in another case: ‘it seems that the making of a public sacrifice to deflect press and political obloquy [censure] ... remains an accepted expedient of public administration in this country’. The judge didn’t consider Sharon Shoesmith blameless but commented that ‘whatever her shortcomings may have been ... she was entitled to be treated lawfully and fairly and not simply and summarily scapegoated’.