Dismiss in haste, repent at leisure

The sacking of Haringey’s head of children’s services highlights the perils of the rush job.

The recent sacking of Sharon Shoesmith, ex-head of Haringey Council Children’s Service, without notice, and her reported claim for £173,000 in compensation, highlights the importance of taking appropriate steps before undertaking similar action.

In most cases, the three-step standard dismissal procedure of invitation, meeting and appeal meeting applies – unless matters are so serious as to justify an on-the-spot dismissal.

With respect to on-the-spot dismissals, compliance with the two-step modified procedure – a dismissal letter, followed by an appeal meeting – is a defence against a claim of automatic unfair dismissal.

Automatic way out

Until April 2009, a failure to carry out the appropriate statutory dismissal process could expose the employer to a claim for automatic unfair dismissal and an uplift on any compensation award of between 10% and 50%.

It is unclear which process Haringey Council followed in the Shoesmith case. We know she was suspended on 1 December 2008, following secretary of state for children Ed Balls’ directive to replace her, but she was not dismissed until 8 December 2008 by a panel of councillors. Both the eight-day period of suspension and the fact that a panel had been convened, suggest the standard dismissal procedure was applied.

Shoesmith appealed the decision, reportedly on the basis that the council failed to follow the appropriate disciplinary process. However, that appeal was rejected by the council, and it is unlikely that we shall find out the detail unless she brings an employment tribunal claim.

One ground for appeal could have been that, given the public, media and political pressure on the council to come to a decision about Shoesmith’s future, the dismissal meeting was rushed and failed to give her adequate time to prepare or respond.

But even if the dismissal was procedurally unfair, Shoesmith’s compensation may be drastically reduced if, should the case go to tribunal, it determines that, had the meeting been fairly undertaken, there would have been no change to the outcome. The council appears to have strong arguments in that regard.

The first, which can be categorised as some other substantial reason for the purposes of section 98 of the Employment Rights Act 1996, is Ed Balls’ directive to replace her.

The second is the Ofsted report commissioned to review the manner in which the Baby P case was handled by the council. The report’s verdict was described by Balls as “damning”. The council said the content of the report “led to a fundamental loss of trust and confidence in Ms Shoesmith”.

Irrational decisions

The general lesson to be drawn from this case is that there will often be commercial or other pressure to dismiss as quickly as possible. In those circumstances, it may be difficult for employers to make rational decisions, or they might be tempted to exaggerate the severity of a particular type of conduct or incompetence to short-cut the process.

This is where a well-drafted employment handbook with relatively sophisticated disciplinary rules and procedures can assist. Having provisions categorising the serious and less serious types of behaviour or minimum standards of performance and what range of sanctions can be imposed in each case of failure, can help avoid hasty decisions which may be regretted later.

Bear in mind though from April 2009, amendments to the Employment Act 2002 and the Trade Union and Labour Relations (Consolidation) Act 1992 will come into force, with the effect that a dismissal will no longer be automatically unfair, for want of compliance with the statutory dismissal procedure.

Key points

  • Assess the seriousness of the situation – ie, is it really gross misconduct or incompetence? – refer to handbook.
  • Only dismiss on the spot – ie, without asking for a response to the charge – if the employee has been caught red-handed, or where the evidence is overwhelming.
  • Be patient. Do not rush the dismissal procedure unnecessarily and undermine a strong position.

Michael-Jon Andrews, employment solicitor, Barlow Robbins

Comments are closed.