Tuesday, 10 March 2009

Sharon Shoesmith - should she get the money?

I've just been chatting to Nick Ferrari on LBC about Sharon Shoesmith's tribunal claim - she presented a claim on Friday at Watford employment tribunal. The headlines say she is claiming £175,000-odd, presumably made up of c. £65k for unfair dismissal and c. £110k for one year's notice.

This case raises really interesting issues. It is quite legitimate to dismiss somebody because of the serious consequences of their poor performance - even when they haven't had any previous warnings. The best-known example is Taylor v Alidair [1978] IRLR 82, where an airline pilot was unlucky enough to have the airline's chief executive in the back of his plane when he performed a hard landing. The Court of Appeal held that the potential consequences of a pilot getting something wrong were so serious that it was acceptable for an employer to dismiss without a warning, to avoid the risk of a second error of judgment.

Equally, it can be legitimate to dismiss if an employer is subject to intense third party pressure. This is normally seen where a customer insists that an individual be removed from a particular contract and there is no alternative job available for him. But there is no reason why media pressure should not suffice (and here, The Sun delivered a petition bearing 1.2 million signatures to Downing Street, David Cameron called for her dismissal and Ed Balls, the Childrens' Secretary, demanded that she be dismissed).

Other issues arise in her claim for notice pay. Apparently, Sharon Shoesmith was entitled to a year's notice, being about £110,000. The law provides than unless an employee is so incompetent that they are in repudiatory breach of contract, they are entitled to their notice pay - although here it would be a county court and not a tribunal claim due to the value. Another issue arises if an employee's contract contains a clause entitling the employer to dismiss without notice if he/she was guilty of actions bringing the employer into disrepute.

19 comments:

Katherine Parr said...

I think she should get full compensation. She didn't do anything wrong herself - she's being blamed for Haringey's systematic failures. That's not her fault.

John Healey said...

Just another example of the compensation culture which is blighting our nation.

Helen Webber said...

Heard you on Nick Ferrari this morning - great stuff. Clear and interesting. You should do more of it.

Charles Zander said...

@John Healey - are you saying people shouldn't even be allowed to attempt to claim for an unfair dismissal? Do you not trust the judges to make a sensible decision? It is ridiculous to call this part of compensation culture!

Clem Stuart said...

What people like Katherine Parr forget is that its OUR money that pays the compensation. How does she feel about writing the check.

Anonymous said...

Its the taxpayer who pays for the compensation, the inquiry, the damage and the lousy service in the first place. We are getting fed up with this.

Anonymous said...

Agree with Katherine Parr and Charles Zander: Shoesmith may have done herself no favours with the media in the immediate Baby P aftermath, but she has nonetheless been made Haringey's scapegoat. The failures were a great deal more systematic than directly attributable and she has every right to pursue a claim.

Terrence Hardy said...

it's time we got rid of employment law completely. surely during such hard economic times as these people might be a little more grateful to employers for having given them any work at all.

Anonymous said...

At an annual salary of £110K, she should be assuming a level of responsibility for what happened. I'm an employment lawyer and feel that she was fairly dismissed - let's not forget that a baby died.

Tony Dempsey said...

Not convinced on the media pressure argument. Third party pressure decisions can be rationalised on the basis of the adverse consequences for the employer if it does not succumb to the pressure - e.g. sack her or you lose our business. That is not the case here. The media can't close down Haringey Council. At worst individual councillors might not get re-elected, but that is a wholly different matter.

Lucy Maxwell Scott said...

And the systematic failures that resulted in Shoesmith's poor performance including the government decision to combine education and childrens services across the country as a whole. Many of Shoesmith's peers will prove equally incompetent if their background too is education and insufficiently child protection orientated - in other words the job design set her up to fail. However, a year's pay in lieu of notice is indefensible ethically however legal it might be.

Anonymous said...

I'm surprised at thye suggestion that media pressure has/should have any legitimacy in an employer's consideration for dismissal. This is potentially lynch mob rule. Yes, if a customer who is the sole purpose of a person's employment finds they cannot work with them then that can be legitimate; but even then the customer's reason smust be reasonable, otherwise the customer refusal to work with a competent and reasonable contact culd be for discriminatory etc reasons and the employer should be entitled to claim breach of contract by the customer. Should a non-governmental customer be allowed to coerce an employer into discriminatory action? Please, no dismissal reason to be allowed at the hands of media, politicians etc without recourse to compensation against a weak employer.

Anonymous said...

Terrence - maybe we should also abolish minimum wage and the duty to operate safe workplaces? And sack all women / people from ethnic minorities / people with disabilities?

Anonymous said...

There is already an absence of employment rights for UK workers. It's called SOSR (Some Other Substantial Reason). The decision in Perkin v St Georges NHS Trust has rendered normally impermissible reasons for dismissal (discrimination, whistleblowing, etc) perfectly acceptable. Whilst one cannot dismiss for being of a particular race, sex, religion or for having blown the whistle, it is quite easy to trump up charges that these facts of someone's status caused a breakdown in working relationships with colleagues. So I suppose Harringay could have easily said that their employee's status as a poor performer could have amounted to 'gross misconduct' for the purposes of regulations on notice periods.

Terrence Hardy said...

Anonymous has sarcastically suggested I might like to abolish the minimum wage and the plethora of healthy and safety legislation as well. Bring it on!

Leonard Sheen said...

The interesting point is that we have a Secretary of State requiring a course of action - the removal of a senior officer. Did the Minister have that power as a matter of law or not. If he did, then surely the dismissal would be on grounds that continued employment breached an enactment. If he did not, then were his actions ultra viries? How does that play with employment law. However, Shoesmith should have shown leadership and should have offered her resignation as it was on her "watch" - my only sympathy for her is that she is a victim of the stupidity of combining education and social services positions.

Laurence Wilson said...

Terrence is right. Let's get kids up chimneys again and working in factories. So much money is wasted on "health and safety" to make machines safer. But so what if a child loses a limb or dies working on unsafe factory machines? There are other children who would be glad to replace them, especially in a recession. The only thing that matters is increased profits for factory owners and shareholders. And as for those liberal laws abolishing slavery! Its political correctness gone mad. I'm with Terrence bring back the dark ages!

Laurence Wilson said...

Terrence Hardy is the voice of reason. Let's get kids up chimneys and working in factories again. And why waste money on "health and safety" to make machines safer? So what if a child loses a limb or dies, there a plenty more kids who would be glad to replace them, especially in a recession. And as for those liberals who abolished slavery! Political correctness gone mad! The only thing that really matters is maximising profits for the factory owners and share-holders. I'm with Terence, the dark-ages? Bring it on!

James Fairchild said...

Perhaps the question should be "what did she personally do wrong"? I'm sure everyone writing here deplores what happened to that little child, but (at least from the media) it seems hard to apportion blame anywhere apart from the monsters who are now at Her Majesty's Pleasure.

If Haringey council applied this same criterion, they would not have dismissed her, and hence no claim would have arisen. Lets face it, rightly or wrongly this lady will not got another job again (whether in local government or otherwise).