It is hard to imagine a more difficult set of circumstances for a local authority than those explored in last month's Court of Appeal ruling. The case is of wider interest because it has a lot to say about what happens when public law and employment law collide against the back-drop of a near hysterical press campaign.
The litigation is still continuing, and an appeal to the Supreme Court remains a possibility, but for now here are some of the key principles that have emerged so far:
- Where a senior public sector employee also holds a statutory office (in this case Director of Children's Services) removal from the underlying employment may be amenable to challenge by judicial review. In this case, Ms Shoesmith was able to challenge not only Ed Ball's direction to remove her from office, but also Haringey's decision to terminate her contract of employment in reliance on it.
- It will not necessarily be possible for a local authority to block judicial review proceedings by arguing that there is an alternative remedy in the employment tribunal. In this case, Ms Shoesmith had already commenced tribunal proceedings as a protective measure, but the Court of Appeal accepted her argument that the cap on compensation and the irrecoverability of legal costs made this a far less attractive option for her than judicial review proceedings in the High Court.
- If the legality of a direction by the Secretary of State is being challenged, it is best to have a fall back position in case the direction is quashed at a later date. In this case it would probably have been better for the local authority to have dismissed Ms Shoesmith on full contractual notice, without prejudice to its argument that it was entitled to rely on the direction to remove her from employment summarily.
Full details of the case can be found here.