Judicial Review of Public Sector Employers

[Thanks to Robert Dickason of Outer Temple Chambers for preparing this case summary]

The Court of Appeal has handed down judgment in R (on the application of Sharon Shoesmith) v OFSTED & ors, rejecting Ms Shoesmith's appeal in relation to OFSTED but upholding it against the Secretary of State for Education and Haringey LBC.

The facts are well known; Sharon Shoesmith was dismissed by Haringey Council as its director of childrens' services, after the death of Baby P. They dismissed her without following any proper process, they said because of pressure from the Secretary of State Ed Balls.

Maurice Kay LJ, giving the lead judgment, stated that Haringey's decision to dismiss for gross misconduct was amenable to judicial review and, notwithstanding pending employment tribunal proceedings, the justice of the case required a decision on the merits. Agreeing with Foskett J's obiter observations below, the dismissal was unreasonable: "she was entitled to be treated lawfully and fairly and not simply and summarily scapegoated". The matter would be remitted on the issue of compensation.

The Court of Appeal upheld the judgment of Foskett J that OFSTED's report into Haringey was carried out lawfully and in good faith, having regard to the "unique nature of the inspection".

However, the Secretary of State's direction to remove Ms Shoesmith from her post was unlawful. Despite a degree of urgency, allowing her to answer the charge would have entailed only a modest delay. Accountability requires giving the accountable individual an opportunity to explain. This was not so clear a case that such an opportunity would inevitably have made no difference.

The Court of Appeal has handed down judgment in R (on the application of Sharon Shoesmith) v OFSTED & ors, rejecting Ms Shoesmith's appeal in relation to OFSTED but upholding it against the Secretary of State for Education and Haringey LBC.

The facts are well known: Sharon Shoesmith was dismissed by Haringey Council as its director of childrens' services, after the death of Baby P. They dismissed her without following any proper process, they said because of pressure from the Secretary of State Ed Balls.

Maurice Kay LJ, giving the lead judgment, stated that Haringey's decision to dismiss for gross misconduct was amenable to judicial review and, notwithstanding pending employment tribunal proceedings, the justice of the case required a decision on the merits. Agreeing with Foskett J's obiter observations below, the dismissal was unreasonable: "she was entitled to be treated lawfully and fairly and not simply and summarily scapegoated". The matter would be remitted on the issue of compensation.

The Court of Appeal upheld the judgment of Foskett J that OFSTED's report into Haringey was carried out lawfully and in good faith, having regard to the "unique nature of the inspection".

However, the Secretary of State's direction to remove Ms Shoesmith from her post was unlawful. Despite a degree of urgency, allowing her to answer the charge would have entailed only a modest delay. Accountability requires giving the accountable individual an opportunity to explain. This was not so clear a case that such an opportunity would inevitably have made no difference.

For a full summary, please see Obiter J.