I’ve spent the last year confidently telling everyone I meet that there is no way that Haringey will settle Sharon Shoesmith’s case. There was such a media outcry over her role and the importance of not giving her a payout that I was certain that Haringey would have to wait until the court ordered compensation to be paid so they could at least argue that they had not done some cosy deal.
Shows how much I know!
Whatever the sum that has been agreed on – and I don’t think any of us have any real idea of how much that is – it is clear that substantial compensation will be paid to reflect the unlawfulness of the dismissal. Not all of that will be paid by Haringey, of course; the judicial review claim was not just against them but also against the Secretary of State for Education. This wasn’t, after all, an unfair dismissal claim, but a judicial review into the blatant disregard for the rules of natural justice displayed by the then Secretary of State Ed Balls together with Haringey’s over hasty disciplinary process where the outcome was a forgone conclusion.
That’s why the compensation could be substantially more than the usual limit for unfair dismissal claims. Shoesmith’s argument will have been that since she was never lawfully dismissed she was essentially entitled to back pay covering the years she has spent unemployed and unemployable.
I thought there was an interesting point to argue here. In an unfair dismissal claim the tribunal would look to make a Polkey deduction – reducing compensation to reflect the likelihood of dismissal occurring even if a fair procedure had been followed. That could have reduced her compensation to a few weeks’ pay, assuming the tribunal accepted that her position was basically untenable. It would have been interesting to see if the High Court would have followed a similar approach in considering her judicial review case. Now we will never know.
One outcome of the case is that judicial review is now clearly an attractive prospect wherever senior public sector employees are sacked in a way they regard as procedurally unfair. The Court of Appeal held that the limit on compensation available for unfair dismissal meant that it wasn’t an adequate private remedy, making judicial review appropriate. It’s expensive of course, but then so is going to an employment tribunal nowadays.
I would love to know how the deal was done, and why it took so long. Who held out and whose nerve failed? Of course the confidentiality clause which is absolutely standard in cases of settlement will mean that we’ll never know. Although if the Department for Education publishes its share of the cost, that will give us a clue.
Whatever he details, no-one emerges well from this. Shoesmith’s refusal to fall on her sword and accept responsibility is less than noble; but faced with no income what was she supposed to do? Haringey failed to stand up to a Secretary of State making a political announcement at the expense of an employee’s right to a fair hearing and then of course there is the Secretary of State himself. It would have cost very little to deal with Shoesmith In a fair way. He chose not to do so and what follows is basically his fault.
Lets be clear about just what Ed Balls did wrong.
As Secretary of State, he had powers under S.497A(4B) of the Education Act 1996 to make directions to Haringey regarding its children’s services and it was these powers that he used to remove Ms Shoesmith from office. He did that by an Order made on 1st December 2008. The OFSTED report that he had commissioned into the case had been completed only the previous evening so by any standards this was a swift decision. Ms Shoesmith had been consulted in the preparation of the report but had not seen it or been asked for her comments on it. Crucially, however, the OFSTED report, in keeping with their normal practice, did not make direct personal criticism of any individuals. On the morning of 1st December, however, Ed Balls met with the officials involved in preparing the report and in the course of his conversation with them they did directly criticise her as having ‘no grip’ and said that Haringey was ‘exceptionally bad’ as regards ‘management and systemic failing’. Ms Shoesmith was given absolutely no opportunity to respond to these comments or to defend herself against any accusation that she was personally to blame for any of the failings identified by OFSTED.
It was after this meeting with officials that Ed Balls made his decision to remove Ms Shoesmith from office. He did not arrange for her to be told that that was about to happen or to make any representations to either himself or his officials. She found out about the decision when he announced it in a press conference later that day. She was telephoned by Haringey during the press conference and told that she was suspended.
Surely any impartial observer would describe that process as being unfair? Isn’t it pretty fundamental (and obvious) that before anyone is removed from office on the basis of criticisms that have been made of them they should be informed of those criticisms and given an opportunity to respond? That doesn’t require a huge delay or a complicated quasi-judicial procedure, just a common-sense pause to allow the individual to make some sort of reasoned response.
Ed Balls has said that he has no regrets about what he did. I’m sure that’s true. He believes that public confidence demanded that he act swiftly. Perhaps. Its certainly true that media pressure demanded swift action and that’s sort of the same thing isn’t it? Had Ed Balls given a press conference where he said ‘I received this report last night and will now be discussing how Haringey can take swift action to address its findings’ he would have seemed less in control and less on top of things. By making his unlawful decision to replace Shoesmith without giving her a fair hearing he managed to seem decisive and to have a firm grip on things. I have no doubt that he would do the same thing again. That’s what is often so disappointing about politicians.
PS this is a slightly expanded and corrected version of this post, now that I am back in the office and not writing on a cracked ipad in a busy coffee shop. Any remaining typos I have no excuse for.