In R (on the application of Shoesmith) v Ofsted and ors the Court of Appeal has allowed a judicial review challenge made by the former Director of Children’s Services for the London Borough of Haringey over the fairness of the process by which she was removed from office and summarily dismissed. A majority of the Court held that the Council’s decision to dismiss S was unlawful and void due to its reliance on unlawful directions from the then Secretary of State for Children and Families.
17-month-old Peter Connelly, ‘Baby P’, died on 3 August 2007 as a result of abuse by his mother, her boyfriend and the boyfriend’s brother, despite numerous visits by social workers and others within the London Borough of Haringey. In the ensuing media frenzy and public outcry, S, then Director of Children and Young People’s Services at the Council, was removed from her post by the Secretary of State on the basis of an urgent inspection and report by Ofsted. Shortly afterwards, the Council summarily dismissed S without compensation or payment in lieu of notice. S’s sought judicial review of the fairness of the process behind the report, her removal from office and her dismissal, but was unsuccessful at the Administrative Court. She appealed.
The Court of Appeal rejected her challenge against Ofsted’s report, but held that the Secretary of State’s directions were vitiated by procedural unfairness. The fact that S was accountable for the department did not disentitle her to elementary fairness, such as being afforded an opportunity to put her side across before being removed from office. Turning to the decision to dismiss S, the Court held that, as an office holder, the Council’s treatment of S was amenable to judicial review and that the proceedings should not be dealt with in an employment tribunal as the alternate remedy – a claim for unfair dismissal in an employment tribunal – was not ’equally convenient and effective’ due to the cap on compensation that applies to such claims.
The majority of the Court of Appeal – the Master of the Rolls and Lord Justice Stanley Burnton – held that the Council’s decision to dismiss S was unlawful and void due to its reliance on the Secretary of State’s unlawful directions. The majority thereby disagreed with Lord Justice Maurice Kay’s view that the case fell within ‘ill-defined’ circumstances that mean that the act of a public authority, done in good faith on the reasonably assumed legal validity of the act of another public authority, should not be vitiated by a later finding that the act relied on was unlawful. On the contrary, the majority view was that since S had put the Council on notice that she considered the Secretary of State’s directions to be unlawful at the appeal against her dismissal, the Council was aware of the contention that the directions were unlawful when it relied on them. Having found in favour of S, the Court directed that the appropriate level of compensation is to be decided between the parties with a remittal to the Administrative Court if agreement cannot be reached. It is reported that the Government intends to appeal the decision.
The case will be reported in a future edition of IDS Employment Law Brief.
The transcript can be viewed here.
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