Lord Justice Maurice Kay has condemned the way in which Sharon Shoesmith, former children services' director at Haringey Council, was "summarily scapegoated" following the death of Baby P in 2007.
Maurice Kay LJ ruled on 27 May 2011 on judicial review challenges brought by Shoesmith, who was summarily dismissed in December 2008 without payment in lieu of notice or compensation.
Delivering the leading judgment in R (on the application of Shoesmith) v OFSTED and others [2011] EWCA Civ 642 ,[1] Maurice Kay LJ said he did not consider Shoesmith to be "blameless" but the task of the court was to adjudicate on the fairness of procedures used by public authorities.
"Whatever her shortcomings may have been (and, I repeat, I cannot say), she was entitled to be treated lawfully and fairly and not simply and summarily scapegoated."
Lord Justice Maurice Kay dismissed Shoesmith's challenge to an "extremely critical" OFSTED report into the safeguarding of children's services in Haringey.
Accountability is not synonymous with 'heads must roll'
However, he upheld her challenge to the way she was treated by former education secretary Ed Balls, who issued a direction under section 497A of the Education Act 1996 appointing John Coughlan, seconded from another local authority, in her place.
"I find it a deeply unattractive proposition that the mere juxtaposition of a state of affairs and a person who is 'accountable' should mean that there is nothing that that person might say which could conceivably explain, excuse or mitigate her predicament," Maurice Kay LJ said.
"'Accountability' is not synonymous with 'heads must roll'. I do not consider it likely that parliament when creating the position of director of children's services (DCS), intended those who may be attracted to such an important and difficult position to be volunteering for such unfairness in their personal position."
Flawed employment procedures
Maurice Kay LJ also allowed Shoesmith's claim relating to her summary dismissal by Haringey Council. The reasons given for it were the secretary of state's direction and a "fundamental breach of trust and confidence".
He went on: "There was no need for Haringey to move with such haste against a previously respected senior employee who was known to be in dire straits by reason of recent events.
"Someone else was already acting as DCS pursuant to the secretary of state's directions and Ms Shoesmith was under suspension. The appearance of a predetermined dismissal without notice or payment in lieu seems to me to be sufficient to make good the charge of unfairness."
Lord Neuberger and Lord Justice Stanley Burnton agreed, for their own reasons.
Recruitment crisis in social care
A report in the Guardian the next day, compensation and legal costs in the two-year case could cost the council and the government more than 1m.[2] Patrick Butler, writing on page 10 of that issue makes the point that the case has had a disastrous effect on attracting new candidates into local authority social services jobs "with recruitment crises solved only by importing safeguarders wholesale from the US and Australia."
What Ed Balls should have done
Leah de Vries a senior associate in the employment team of law firm Pinsent Masons told The People Bulletin:
"Even if an employee is guilty of gross misconduct, the law protects their right to be treated in a manner which is reasonable. This includes elements of procedural fairness based on natural justice. Before any dismissal, a thorough investigation should take place and specific allegations put to the employee. They should then have the opportunity to 'put their case' which means the decision maker should listen to any explanation; excuse; mitigation and then weigh those comments in the balance before deciding what action to take. That decision maker should also be impartial. Any suggestion that they were acting on the direction of another, whether internal or external to the organisation, will make it more difficult for the employer to show that decision was reasonable or that the principles of natural justice were respected . "
Note: Sections of this story first appeared on www.solicitorsjournal.com
[1] www.judiciary.gov.uk/media/judgments/2011/Shoesmith-v-ofsted-and-others-judgment
[2] www.guardian.co.uk/society/2011/may/27/sharon-shoesmith-baby-p-case