Legal advice after baby loss
Ed Balls has been quoted as saying that the pay-out to Sharon Shoesmith, reputed to be as much as £600,000, left a “bad taste” in the mouth. But in that respect responsibility for that “bad taste” may lie at his own door and that of his advisers at the time. It involves a salutary lesson for employers.
The issue, as we know, involves the sad and tragic death of Baby P (Peter Connolly) on 3 August 2007. Sharon Shoesmith had been Director of Children’s Services in Haringey. The day after the criminal trial in which Baby P’s mother, boyfriend and boyfriend’s brother were convicted of causing or allowing Peter Connolly’s death (contrary to the Domestic Violence, Crime and Victims Act 2004), Mr Balls, then Secretary of State, commissioned an OFSTED report. The report was critical and identified serious concerns, but it did not name individuals. Nonetheless, immediately upon receipt of that report, on 1 December 2008, Mr Balls appointed, on a temporary basis, a new Director of Children’s Services. 18 days later, on 19 December 2008, he appointed another Director of Children’s Services for a period of three years.
The first Sharon Shoesmith heard about her removal from office was when she saw coverage of Mr Balls’ press conference on the television news! Unsurprisingly she complained about the lack of procedure that was used in removing her from office. Haringey subsequently summarily terminated her from her contract of employment with them because Mr Balls had removed her from her office. Her internal appeal was turned down.
Whatever may have motivated Mr Balls to take the decision that he did, he failed, and this was crucial, to afford Sharon Shoesmith the opportunity to respond to the case against her. That was fundamental and unforgiveable. This was not, after all, a case of a “front line” social worker, who left in place for a minute longer might have caused harm to individuals in her care. There was no such urgency.
In the current debate, it might be assumed by some, that there was nothing Ms Shoesmith could have said in defence of her position that might have produced a different outcome. That line of argument found absolutely no favour in the Court of Appeal which decided liability in this case in 2011. Lord Justice Maurice Kay put it succinctly:
“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. “Accountability” is not synonymous with “heads must roll””.
Some might say that even if Mr Balls had “messed up” (I will resist an unseemly pun) his procedure, it should not have had the financial consequences that it did. After all Ms Shoesmith was an employee on a reported annual salary of £133,000. How come she managed to secure a negotiated settlement which is said to be as much as £600,000?
Outside those who negotiated the deal, no one actually knows. However, the clue may well be in a decision emanating from the Cayman Islands which is, perhaps, not as well-known as it might be. It is McLaughlin v Governor of the Cayman Islands. In that case, the Privy Council decided that if a public authority dismissed a holder of a public office in excess of its powers, in breach of natural justice, or unlawfully, that dismissal is “null, void and without legal effect”.
The consequences for Mr Balls and his department may have been disastrous. That meant Ms Shoesmith could theoretically claim arrears of salary and pension contributions from December 2008 and continuing, until her employment is lawfully terminated.
Given these ramifications, it somewhat perplexed two of the Court of Appeal Judges why Haringey did not protect its position by serving a contractual notice terminating Ms Shoesmith’s contract of employment. They could have done so “without prejudice” to their contention that it was entitled to dismiss her summarily. For reasons that have not been explained, it did not do so.
What cannot be forgotten in all of this furore is the fact that at the heart of this case a young toddler so tragically lost his life so close to the centre of one of the greatest cities on earth. That, of course, should not have happened. If there are people in a position of responsibility, whether or not they had “day to day” operational control over the particular situation, their position would inevitably come under the microscope. What is, unforgiveable, however, is that before moving to remove such a person from office, she was accorded no proper or adequate procedure to allow her to put forward her case. That goes against the most basic tenets of natural justice, and all employers would do well to heed this message, however extreme the circumstances of the case they are dealing with.
As a post script, there was an opinion piece in The Times (October 30th 2013) which summarises some of what Sharon Shoesmith might have said in her defence had she been given that opportunity. For those who would immediately assume there is no question but that she should have been removed from office and lost her job, it warrants a close read.
This article first appeared on www.hrmagazine.co.uk.
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