Sharon Shoesmith: guilt and unfair dismissal are different.

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In late October 2013 the Sharon Shoesmith affair reached a head with the report that the award made to her for unfair dismissal amounted to about £600k plus £196k in costs. Back in May 2011 we argued that her guilt and the judgement that she had been unfairly dismissed were two different things. However awful politicians and the public feel someone’s behaviour and competency were, they still have employment rights and a fundamental right to be dismissed fairly. And that means dismissal after due process including investigation, hearing and appeal, not dismissal by proxy on television. Back then we predicted a minimum award of £500k. It seems our blog from way back then was spot on in every aspect. Read it now below.

The papers are awash with articles about Sharon Shoesmith and Haringey Council. Ed Balls was Children’s Secretary in December 2008 when he publicly called for Ms Shoesmith to be dismissed. Haringey Council obliged.

Sharon Shoesmith took her case to an employment tribunal claiming unfair dismissal. The Tribunal decided that she had not been unfairly dismissed. She appealed and three Appeal Court judges ruled that she was indeed unfairly dismissed. Since Friday the papers have been full of comments from all sides. According to an article on the BBC news website [1] David Cameron (Prime Minister) is uncomfortable with this decision and has stated that he believes elected ministers should be able to make decisions about their own departments. I totally agree with this statement. ALL managers should be able to make decisions about their own teams, BUT they must act within the law.

The appeal judges have not ruled whether or not Ms Shoesmith is to blame, or if she should be held accountable for what happened to Baby P. They have not ruled on her competence or on whether Haringey Social Services was a shambles. They ruled only that the way her dismissal was dealt with was unlawful; it was procedurally unfair. They ruled on a singular employment issue.

Any employee can complain to an Employment Tribunal if they believe they have been unfairly dismissed. There are several reasons which are automatically unfair.
1. There was no reason for dismissal, since there was no issue with performance.
2. The correct procedure was not followed. This includes the statutory requirements and the firm’s own process.
3. There was an automatically unfair reason (for example a reason related to a business transfer, unfair selection for redundancy or reason related to pregnancy or maternity leave).

Where an employee is summarily dismissed without due process (as in the case with Ms Shoesmith) this is usually unfair. She claims that she only learned of her summary dismissal when watching a news conference on the television.

What is interesting is the fact that the reporting has muddied the waters. There are two distinct issues. Firstly there’s the process of dismissal; was it fair or unfair? Secondly there’s her guilt or innocence of the action leading to her dismissal. Haringey Council, as her employer, should have been satisfied that their assessment of the situation following an investigation proved her guilt. Note the key point here: they should have been satisfied after investigation. These two words, satisfied and investigation, should then have driven due process. Subsequent actions would have stood the test at tribunal and the papers would be short of sensation!!

Today the papers are awash with reports about the compensation Ms Shoesmith may be awarded. There have been calls for her to hand over any award to charity [2]. There have been suggestions that the amounts under discussion are obscene. Is she right to expect a compensatory payment? Too right she is!! The actions of her employer mean that she is unlikely to work again. She has suffered loss of earnings, loss of benefits and loss of pension provision. Her earning potential in the future is severely eroded. There is also a compensatory consideration for the hurt caused, which in the case of Ms Shoesmith included death threats. So, someone on a salary of £133k fighting a case over three years could expect at least £500k for loss of earnings. She’s 58 so add seven years for loss of ability to work and that adds £1M. Then add the hurt and it’s very easy to reach a reasonable figure of £2.5M.

The actions of her employer were wrong. Summary dismissal is wrong. Yes, suspend her (with pay) and carry out an investigation. Hold a disciplinary meeting to share the evidence and hear counter arguments for her behaviour. Only then, should a decision have been made. Even then she would have the right of appeal. If the facts suggested that serious misconduct occurred and the decision was upheld at appeal, then it would be reasonable to dismiss. The ultimate test is that Haringey would need to have reasonably believed she was guilty of the misconduct; no ‘proof beyond reasonable doubt’, no ‘proof on balance of probabilities’, just reasonable belief as a reasonable employer.

UK employment law has been developed to protect staff. The Government and public bodies are not above the law. They would do well to remember this when dealing with their staff. It’s really not that difficult!

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[1] Baby Peter boss Sharon Shoesmith ‘does not do blame’, BBC News, (accessed 29 May 2011)
[2] Baby P’s grandmother tells disgraced Sharon Shoesmith to hand over her £2.5 million compensation to charity. Mail Online, (accessed 30 May 2011)

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