Sharon Shoesmith should be compensated - but we need a no-fault system of ending employment contracts

The media and the twitterati have had their weekly fix of synthetic anger over the award of compensation to Sharon Shoesmith, the former Head of Haringey Children's Services, for unfair dismissal. Some of the tone of this comment is only one step up the evolutionary scale from the behaviour of the mindless thugs who murdered and then set fire to the body of a hapless individual they suspected of paedophilia.

Get this in perspective. Ms Shoesmith may have her faults but she did not kill poor Baby P. The responsibility for that awful crime lies squarely with his mother (just recommended for release from jail by a parole board, I see) and her partner and his brother. By all accounts Ms Shoesmith had never heard of the child and his ‘family’ – one of the hundreds of feckless and dysfunctional households on Haringey’s books – until it was too late.

It is debatable how far the head of a large organisation should be penalised for the failings of her staff (and the police, who were outside her control). Perhaps there should have been some system which flagged up the Baby P case for her attention. Or maybe she should have organised better training of her staff in making decisions about how and when to intervene in these cases. Hindsight is a wonderful thing.

Whatever your judgment on this, Ms Shoesmith might well have considered resigning, as chiefs of organisations seen to be failing often do. Such a reaction would have been seen as honourable, and not necessarily a blot on her career. If she wasn't so inclined and her employers thought she should go, they might have gone down the disciplinary route.

But what really should not have happened is that Ed Balls, in his first big solo job, interfere and effectively sack her in public. When I saw his press conference on TV, I turned to my partner and said ‘that is unfair dismissal and she will win at an employment tribunal’. 

I have blogged about unfair dismissal several times. There are very limited grounds on which you can fairly sack someone after they have been employed satisfactorily for two years. And you have to follow proper procedure. In this case, if her employers felt Ms Shoesmith was to blame in some way then she should have been suspended on full pay and put through a proper disciplinary process where she would have the opportunity to defend herself.

Instead Haringey cobbled together a kangaroo court to do a minister’s bidding, a very dangerous precedent for a country which purports to believe in the rule of law.

The outcome was entirely predictable, with the taxpayer now having to shell out hundreds of thousands of pounds to Ms Shoesmith, a hitherto blameless individual whose career and personal life have been ruined to satisfy political bloodlust. And no doubt the legal fees will have been pretty steep too. Mr Balls might consider making a contribution, since it was his folly which has led to this result.

Leaving aside this case, there are many occasions when, for good reasons or bad, employers wish to dispense with the services of an individual. If they are to do this promptly and with least damage to themselves and their employees, they need a no-blame way of ending employment which has become problematic.

This was Adrian Beecroft’s proposal, which the LibDems scuppered. If his scheme for no-fault dismissal had been implemented, Ms Shoesmith could have been removed and paid a predetermined level of compensation without the need for courts. She could have then got on with her life and probably would have been back in work somewhere else by now, instead of living on benefits (and no doubt a pharmacy-full of anti-depressants) until her compensation cheque arrives.

The Beecroft proposal as it stood was not perfect, and would have needed some work on it to produce a robust system. But the Coalition – or perhaps the Labour Party, with the benefit of Ed Balls’ advice – should pick it out of the waste paper basket and give it more thought if it wants to avoid cases like this in the future.

I regard employment of an individual by an organisation as a voluntary market transaction, which (like most voluntary market transactions) is normally expected to benefit both parties. Unless the 'contract' is expected to last for the whole of the employee's remaining lifetime, there must be a sensible way to end it if circumstances arise which means one or both of the parties no longer think the deal is on balance beneficial. (Of course, this will be a subjective judgement.) One of the few pieces of 'career' advice I used to give students was: 'if at all possible, whenever you leave a job, try to leave on good terms.' So although the last resort if things go wrong might be for an employee to appeal to a court for proper compensation for 'unfair dismissal', for most situations it ought to be possible to come to a reasonable agreement. The truth is, when an employment has 'gone wrong' (for whatever reason), both parties are usually conscious of that fact. In my (very limited) experience, employees who are being 'let go' are often actually quite relieved to be free of all the stress etc. Of course the financial arrangements have to be sorted out, but we are talking about human beings for whom money isn't everything, and indeed may often not be the most important thing. I like the saying attributed to Confucius: 'Do not treat other people as you yourself would not want other people to treat you.' I cannot believe many people would want to be treated as Ms. Shoesmith was treated, at Ed Balls's instigation.
Dispensing with the services of an individual at whim is not the best way forward, all the more so when that individual faces a press campaign of intensity and malice. It is worth pondering the petition of the Sun: “The fact that Baby P died despite 60 visits from Haringey Social Services is a national disgrace. I believe that ALL the social workers involved in the case of Baby P, including Sharon Shoesmith, Marie Ward, Sylvia Henry and Gillie Christou should be sacked and never allowed to work with vulnerable children again. I call on the Chief Executive of Haringey Council, Ita O’Donovan, to ensure this. And I further demand that Beverley Hughes, the Children’s Minister, and Ed Balls, the Education Secretary, should apply immediate and sustained pressure to ensure this happens. I also demand that the doctor involved in Baby P…should also lose her job and not be allowed to treat the public again. And I ask the General Medical Council to ensure that this happens.” There are a few inaccuracies in that petition, which mught be of some concern given that some 1.5 million people were induced to lend their names to it. Sharon Shoesmith was a department head and a teacher, not a social worker. The number of visits from social services was about 20, the remainder being from other agencies. Sylvia Henry was entirely without fault, as the Sun had to admit at the doors of the court in defamation proceedings. It was by no means obvious in foresight as opposed to hindsight that Baby P was at immediate risk of life-threatening injury. As reports show, in In the last three weeks of his life, Baby P was seen on eight different occasions by professional staff including the GP, health visitor, staff at NMUH A & E and the Walk in Centre, a community paediatrician, social worker, Family Welfare Association worker and Mellow Parenting staff. During these three weeks no one identified immediate risks to Baby P’s health and well being. As the second serious case review (the one ordered by Ed Balls) said: "It can only be assumed that he was as well as he appeared to be at those times." Given that as is apparent from its plain wording the petition was calculated to ruin their lives, cause them to lose their existing employment, and prevent them from ever finding work in their chosen field again it is reasonable to suppose that an ethical editor and journalistic team should not have embarked on such a campaign except on the basis of clear, certain and compelling evidence and that the facts presented to the public were wholly true and accurate. But in relation to the number of visits it was less than a halftruth, in relation to Ms Henry it is an admitted falsehood and in relation to Ms Shoesmith it misstates her position and involvement. It might be said on behalf of The Sun that such issues are mere technicalities and that the substance and main thrust of the petition was correct, but it is submitted that in a campaign of such intensity and with such severe consequences for the lives of the named individuals a partial truth is not enough. The people best placed to ensure that Ms Shoesmith and her colleagues received fair treatment were her employers at Harringey and Ed Balls, and in that respect they conspicuoulsy and fell down on their duty to the staff for whom they were responsible. The JAR inspection ordered by Mr Balls took place within an unreasonably short timescale and in a feverish atmosphere that cannot have done otherwise than to affect all those involved, and the soundness of any conclusions made is open to doubt. Further, the conclusiuons reached were in general terms and not applicable to any single individual. Ms Shoesmith had the same rights as any office holder or employee - to know in detail the case against her whereby she might be dismissed and to have a proper oportunity to answer it before any decision was taken. That right was denied, and on the published material such case was far weaker than popularly believed. Who is to say that Ms Shoesmith was not a doughty fighter for her departments, battling against cuts and historic entrenched attitudes?

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