The dismissal of Sharon Shoesmith by Haringey Council on 1 December 2008 following the death of Baby P on 3 August 2007 led to one of the biggest child-protection controversies of recent years. She subsequently won substantial damages.
One does not have to predict the use of ‘The Sharon Shoesmith Defence’ [excuse] for the scandalous largesse towards Katrina Percy. Tim Smart is using it already.
On 1 June 2016, he attended a meeting with My Life My Choice, a self-advocacy organisation for people with learning difficulties, where this exchange took place:
- Jackie: “Could you please explain why Katrina Percy is still the Chief Executive of Southern Health?”
- Tim: “Well there’s a straightforward answer to that question. It’s because nobody has fired her and she hasn’t resigned.” [Patronising?]
- Shaun: “Why not?”
- Tim: “Sharon Shoesmith was dismissed from her job at Haringey Council by Ed Balls after the Baby P scandal. She was then awarded almost £3 million in damages.” Read more →
As Sara Ryan suggested … “Just mention Shoesmith when anyone asks a dodgy Q“.
We understand that, at a meeting of ‘Friends of Lymington Hospital‘ last week Smart was asked about the Percy settlement – and trotted out the Shoesmith excuse.
So let’s expose this myth now.
It’s simply untrue that Shoesmith received £3 million in damages. The BBC reported that Haringey Council’s Accounts suggest her compensation was calculated along the following lines: £377,266 for salary, fees and allowances, £217,266 in compensation for loss of office and £84,819 in pension contributions, i.e. £679,351 in total. The council revealed it had spent £196,000 on legal costs fighting Shoesmith’s appeal. Read more→
THE BLAME GAME
The serious case review found failings in the way multiple agencies handled the case. Haringey Council, the Metropolitan Police and Great Ormond Street Hospital (“GOSH”) all got it wrong. But it was Shoesmith and Haringey’s social workers that became the main focus of the media frenzy that followed.
Shoesmith claims it was the greater status of GOSH and the Metropolitan Police that enabled them to wield more power and influence to avoid blame and head off publicity of their own errors. She may well be right: indeed, the General Medical Council took disciplinary action against two doctors.
Moreover, Dr Kim Holt, a consultant paediatrician, who worked in a clinic run by GOSH at St Ann’s Hospital in Haringey, had written an open letter to the management of GOSH, warning that staff shortages and poor record-keeping would lead to a tragedy [Where have we heard that before?] Kim then spent four years on ‘special leave’ from 2007 to 2011 until eventually the hospital management apologised and reinstated her. Kim said:
“They tried to push me out simply because I told the truth. It was all about protecting the name and reputation of the Great Ormond Street brand.”
She claimed Peter could have been saved if managers had listened to fears raised by senior doctors.
In 2011 Kim founded Patients First, which works to protect whistle-blowers in the NHS and in 2013 was voted among the most inspirational women in healthcare.
And it was in 2011 too that The Whittington Hospital NHS Trust took over responsibility for the child community services team in Haringey, where Dr Holt is now Designated doctor for Children in care and the medical advisor to Haringey regards children being adopted and fostered.
The NHS Chief Executive – The Terminator
The NHS of course does it differently for their Chief Executives. The CEO of GOSH, Dr Jane Collins unloaded the perceived problem onto another Trust [where have we heard that before?] and held on to her post until 31 August 2012 on remuneration in excess of £180,000 per annum. Meanwhile:
- In 2010, forty consultants at GOSH (yes, that’s right, FORTY) had called for her to resign.
- In 2011, Dr Collins survived calls for her resignation from Home Office Minister, Lynne Featherstone after the BBC revealed she withheld information critical of the hospital from the official inquiry into the tragedy. [Where have we heard that before?]
- In 2011, ‘The Evening Standard’ reported that Dr Collins escaped a GMC investigation over the Baby P scandal by removing herself from the medical register.
Dr Collins finally resigned in 2012 when Marie Currie appointed her as Chief Executive of the charity. Her reason:
“I thought I needed a change.”
In Marie Currie’s Annual Accounts 2014-15, she received a ‘not-quite-so-fat-cat’ salary of £166,650 per annum.
THE STORY SO FAR
Whilst Shoesmith was dismissed instantly and unlawfully, the NHS does it differently.
The whistle-blower is put on ‘special leave’ for four years whilst the CEO of GOSH hangs on; unloads the perceived problem onto another Trust; and holds on to her post until 31 August 2012 on annual remuneration in excess of £180,000 until she finds another job.
Read more on the GOSH, Collins/ Kim Holt scandal here→
THE LEGAL ARGUMENT
The legal argument starts in the Cayman Islands – any excuse to use a tropical beach image – in McLaughlin v Governor of the Cayman Islands  UKPC 50.
On 31 December 1998, the Governor purportedly dismissed Dr McLoughlin, a well-qualified scientist in the Cayman Islands Government Service. It was common ground that the dismissal or purported dismissal was in breach of natural justice and relevant statutory regulation and therefore unlawful. There was a series of appeals to The Court of Appeal and The Grand Court of the Cayman Islands before The Privy Council put matters straight on 23 July 2007.
Lord Bingham agreed that the expression “void” was apt … the change of language did not alter the legal result. Whether void or unlawful, the decision to dismiss and the dismissal were without legal effect and there was no analogy with wrongful dismissal where dismissal may be unlawful but still effective. Lord Bingham added:
“It is a settled principle of law that if a public authority purports to dismiss the holder of a public office in excess of its powers, or in breach of natural justice, or unlawfully (categories which overlap), the dismissal is, as between the public authority and the office-holder, null, void and without legal effect, at any rate once a court of competent jurisdiction so declares or orders.
The office holder remains in office, entitled to the remuneration attaching to such office, so long as he remains ready, willing and able to render the service required of him, until his tenure of office is lawfully brought to an end by resignation or lawful dismissal.”
In short, if it is declared that an employee’s purported dismissal was ineffective in law to end his tenure in office, he is entitled to recover arrears of salary and payment of pension contributions until he resigns or his tenure of office lawfully comes to an end.
A key reason why Shoesmith was in such a strong legal position was due to the sheer trigger happy conduct of Ed Balls, who effectively removed her from her role at Haringey without warning, flouting the most basic legal procedures. The first she heard of her sacking was on seeing TV coverage of Mr Balls’s press conference! Balls [up] also ignored the fact that Shoesmith was by no means solely responsible for the death of baby Peter, which illustrates an unwillingness to learn the facts.
Unsurprisingly, Shoesmith complained about the lack of procedures used in removing her from office. Haringey subsequently summarily terminated her from her contract of employment with them because Mr Balls had removed her from her office. The Council accorded Shoesmith no proper or adequate procedure to allow her to put forward her case, which goes against the most basic tenets of natural justice, however extreme the circumstances of the case employers are dealing with.
Whatever motivated Mr Balls to take the decision he did, he failed crucially to afford Sharon Shoesmith the opportunity to respond to the case against her. That was fundamental and unforgiveable.
Therefore, as in McLoughlin, Shoesmith was entitled to recover arrears of salary and pension contributions until she resigned or her tenure of office lawfully came to an end.
Given these ramifications, it somewhat perplexed two of the Court of Appeal Judges why Haringey Council did not protect its position by serving a contractual notice terminating Ms Shoesmith’s contract of employment. They could have done so “without prejudice” to their contention that it was entitled to dismiss her summarily. It did not do so.
Nobody in a position of authority has suggested Southern Health should have dismissed Percy summarily. The proper course of action was to act in a manner consistent with employment law:
- Suspend her on full pay on publication of the Mazars Review. It appears that this is acceptable for whistle-blowers such as Dr Kim Holt but not for failed NHS leaders.
- To prevent a Court subsequently finding her dismissal ‘void’, serve a contractual notice terminating her contract of employment, “without prejudice” to the outcome of the disciplinary process.
- Commission a full investigation into her conduct.
- Hold a disciplinary hearing, giving her the chance to defend herself.
- Throughout, act in a manner consistent with employment law to ensure that a Court could not find her entitled to recover arrears of salary and payment of pension contributions until she resigned or her tenure of office lawfully came to an end.
However, even if Jeremy Hunt had been so reckless as to ‘do a Balls up’; the Trust had not served a ‘without prejudice’ contractual notice; and Percy had issued legal proceedings, it is impossible to imagine her receiving more than Shoesmith’s award.
Surely Mr Smart, Southern Health’s friends solicitors, Capsticks would have done better than that anyway.
At the time of the Shoesmith settlement, it was said of Mr Balls-up:
“It is not great to know that someone does not care too much if he saddles the tax payer with more than £600k of damages to an employee.”
It is not great to know either that another fully paid-up member of the Labour Party (Tim Smart) does not care if he saddles the taxpayer with an ongoing remuneration package of over £240,000 per annum for a “Bad Manager.”
It the long run, Percy’s dismissal (even if messed up as seriously as Shoesmith’s) would have cost taxpayers only the equivalent of four years’ remuneration. Now the NHS is potentially stuck with those annual payments for much longer.