R (on the application of Shoesmith) v Ofsted and ors 2011 EWCA Civ 642

Sharon Shoesmith was removed from her post in December 2008 by the Secretary of State following the death of Baby P.  She was dismissed without compensation or payment in lieu of notice.  She sought a judicial review of her removal from office and her dismissal on appeal to the Court of Appeal.   

The Court of Appeal held that she was entitled to elementary fairness before she was dismissed or removed.  The Secretary of State’s decision to remove her before allowing her to answer the charge was unlawful and therefore she was entitled to a public law remedy.  The proceedings should not be dealt with in an employment tribunal, as the alternative remedy - a claim for unfair dismissal - was not equally convenient and effective due to the cap on compensation that applies to such a claim.   

The Court directed that the appropriate level of compensation was to be decided between the parties with a remittal to the Administrative Court if agreement cannot be reached.  Compensation would be a matter between Ms Shoesmith and Haringey although the Court indicated that it would be appropriate for Haringey to seek a voluntary contribution from the Secretary of State whose unlawful directions gave rise to the problems.  Compensation may be limited to the equivalent of 3 months’ salary and pension contributions reflecting her contractual notice position at one end of the scale and at the other her salary and pension contributions from December 2008 until her tenure came to an end lawfully.   

Ms Shoesmith was unsuccessful in her claim against Ofsted that they had breached the common law requirement of procedural fairness.  Ofsted were not required to include a feedback stage or allow her comments on the draft report.  She could not complain that the gist of the concerns in the report of which she was advised was insufficient.  Ofsted’s report into Haringey was carried out lawfully and in good faith.  

The Government intends to appeal the decision.