Shoesmith, Regina (on The Application of) v OFSTED and Others: CA 27 May 2011

The claimant appealed against dismissal of her claim. She had been head of Child Services at Haringey. After the notorious violent death of Baby P, the Secretary of State called for an inquiry under the Act. He then removed her as director. She claimed that the dismissal was unfair, not having been given opportunity to make representations either to those preparing the report or to him before his decision. The judge rejected both claims finding no full duty of fairness to the claimant.
Held: The claimant’s appeal in the cases against the Secretary of State and Haringey succeeded, but not that against OFSTED. The first two had made a public sacrifice of her, using her as a scapegoat.
OFSTED’s Review was prepared without the standard arrangement to allow feedback, and the report (as standard) criticised no individual directly, but was scathing of the authority. The Secretary of State made his announcement at a press conference, and incorrectly recorded the OFSTED report. Though requirements of procedural fairness vary with the context, the urgency did not justify the departure from such fairness, and ‘The fact that the 2004 Act, in creating the singular post of DCS, identified as a matter of policy one individual with ultimate responsibility and accountability in relation to children’s services does not mean that that person is to be denied the protections that have long been accorded to responsible and accountable office-holders.’
As to Haringey, the judge had been wrong to refer any claim to the employment tribunal. Her remedies at court may be different and preferable, and the case raised substantially the same issues. There may remain situations where a decision based upon another which later proves unlawful may not itself be vitiated, but this was not one. Haringey had been placed in a difficult position by the Secretary of State, but ‘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. Although the summary element is of contractual significance, going to a potential claim for wrongful dismissal, it comes into the public law picture because it was part of the appearance of unfair predetermination.’

Lord Neuberger MR, Maurice Kay VP, Stanley Burnton LJJ
[2011] EWCA Civ 642, [2011] PTSR 1459, [2011] BLGR 649, [2011] IRLR 679, [2011] ICR 1195
Children Act 2004 20(1)(b), Education Act 1996 497A(4B)
England and Wales
See AlsoShoesmith, Regina (on The Application of) v OFSTED and Others Admn 10-Nov-2009
. .
Appeal fromShoesmith, Regina (on The Application of) v Ofsted and Others Admn 23-Apr-2010
The claimant challenged her dismissal as Director of children’s services at the respondent council following an adverse report into the Baby P death identified her department as being responsible. She said that the first defendant had allowed its . .
CitedMaxwell v Department of Trade and Industry CA 1974
The plaintiff complained that adverse findings had been made against him by inspectors acting under the companies acts. The inspectors conducted their inquiries in private and heard evidence from individuals. They then informed the persons in . .
CitedMahon v Air New Zealand Ltd PC 1984
There had been an inquiry into a tragic air crash. The appellants said that though identified by the Royal Commissioner (a High Court judge) as being parties to ‘an orchestrated litany of lies’, they had not been given a proper opportunity to answer . .
CitedMalloch v Aberdeen Corporation HL 1971
A common law action for wrongful dismissal can at most yield compensation measured by reference to the salary that should have been paid during the contractual period of notice. Lord Reid said: ‘At common law a master is not bound to hear his . .
CitedRegina v Broxtowe Borough Council ex parte Bradford CA 2000
A tennis coach wanted employment with the borough council as a coach. It made inquiries of another council and found that he had been suspected of improper conduct towards young girls. It not only refused him a job but imposed a ban upon him . .
CitedRegina v Chief Constable of the Thames Valley Police, Ex parte Cotton CA 1990
The Chief Constable’s power to dispense with a probationer’s services under Condition 7 is only exercisable in cases where the probationer constable’s unfitness does not arise from alleged misconduct, for example where it arises from the constable’s . .
CitedRegina v Secretary of State for the Home Department ex parte Doody and Others HL 25-Jun-1993
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Limitations on Disenfranchisement
The cause of disfranchising a citizen, freeman, or burgess, ought to be grounded upon an Act which is against the duty of a citizen or burgess, and against the public good of the city or borough whereof, and c. and against his oath, which he took . .
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A sentence of detention during her majesty’s pleasure when imposed on a youth was not the same as a sentence of life imprisonment, and the Home Secretary was wrong to treat it on the same basis and to make allowance for expressions of public . .
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The Court was asked as to the validity of proceedings at a meeting of the members of the local Labour Party which had broken up in disorder. The proceedings were instituted by the leader of one faction on behalf of himself and all other members of . .
CitedVine v National Dock Labour Board HL 1957
The plaintiff was employed under a statutory scheme for the employment of dock labourers. He appealed against a finding that the rules on dismissal contained within the scheme were not the only ones appertaining.
Held: (reversing the majority . .
CitedRidge v Baldwin (No 1) HL 14-Mar-1963
No Condemnation Without Opportunity For Defence
Ridge, a Chief Constable, had been wrongfully dismissed because he was not given the opportunity of presenting his defence. He had been acquitted of the charges brought against him, but the judge at trial had made adverse comments about his . .
CitedRegina v East Berkshire Health Authority, ex Parte Walsh CA 14-May-1984
A district nursing officer had been dismissed for misconduct. He applied for judicial review. He sought judicial review to quash the decision on the ground that there had been a breach of natural justice and that the district nursing officer had no . .
CitedRegina v Essex County Council, ex parte EB 1997
It was wrong to require a plaintiff to begin a claim in the employment tribunal where the possible remedies in the County Court were greater or different. . .
CitedBoddington v British Transport Police HL 2-Apr-1998
The defendant had been convicted, under regulations made under the Act, of smoking in a railway carriage. He sought to challenge the validity of the regulations themselves. He wanted to argue that the power to ban smoking on carriages did not . .
CitedMcLaughlin v Cayman Islands PC 23-Jul-2007
(Cayman Islands) The plaintiff had been wrongfully dismissed from his post as a public officer. He appealed against a refusal to award him his pay.
Held: The dismissal from a public office being unlawful, it was void and ineffective to remove . .
CitedMossell (Jamaica) Ltd (T/A Digicel) v Office of Utilities Regulations and Others PC 21-Jan-2010
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CitedGibb v Maidstone and Tunbridge Wells NHS Trust CA 23-Jun-2010
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CitedChief Constable of the North Wales Police v Evans HL 1982
The Court found the probationer police constable to have been unlawfully induced to resign, but the court could not order his reinstatement. A power must be exercised by the precise person or body stated in the statute. Though courts may review the . .

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Lists of cited by and citing cases may be incomplete.

Administrative, Natural Justice, Employment

Updated: 01 November 2021; Ref: scu.440224