Friday, 27 May 2011

Wordsmithing Shoesmith

So Sharon Shoesmith has won her appeal.  Good.

Note, she did not succeed in persuading the Court that the Ofsted report into the department that she ran was in any way, shape or form incorrect.  The report concluded that there was something going seriously wrong under her management, that there were serious failings.  That conclusion stands.  Peter was failed by her department, and died.  Prima facie, the decision to sack her was right.

The conclusion of the Court was that the way in which she was sacked was wrong.  In this regard, the Court was absolutely right.  Balls stood up in a televised interview and announced that she was being removed from her post.  That was the first she heard of the decision.  No-one summoned her to their office to explain herself.  No-one explained that the Ofsted report was distinctly damning, and asked her if she had anything to say.  No-one, in short, gave her a chance to defend herself and her actions.  Balls just made the decision on the spot in order to save his political hide, and we are going to have to pay for that (as per usual).

Balls is unrepentant.  He obviously does not realise that the law does not allow you to act in this way.  What's more, it is Labour's employment laws that prevent this.  No employer can just decide that an employee is not up to the job and explain that their services are no longer needed.  Instead, it is necessary to sit them down, point out that what they did was utterly bloody stupid not in accordance with the way that they had been asked to operate, explain to them how you would like it done, and send them off to cock up another case try again.  Then, when the inevitable happens, you have to initiate a formal review process, asking them what extra training they need, if there is anything they need to do their job properly (note: offering them loan of a brain cell is not permitted) and warning them that failing to improve would not be a good idea.  Then you give them a few more months, and sit them down again to explain that they're not getting any better, etc etc.  then, a few months later, you have to give them a formal final warning, and then, assuming they continue to be utterly useless not up to the required standard, you can finally give them notice.

Fail to follow this elaborate and longwinded procedure to the letter, and they will have a valid claim for unfair dismissal.  You can then expect to be taken to the cleaners an employment tribunal, at which point you have a choice of either giving them £60k in compensation or paying a lawyer £60k to defend the claim in the hope that you win (which you won't).  And no, you don't get those costs back, even if you do actually win.

And I know this to be true, because I've been through it. Thankfully, we avoided the tribunal stage.

So what is disgusting about this affair is not Shoesmith's somewhat hollow victory, but the utter brass neck of Balls to flagrantly break the employment laws that his party imposed on the rest of us, and then waltz off leaving the bill on our laps.  If there is a lesson to learn from this affair, it is that a decision which was clearly right (both at the time and in retrospect) should not be challengeable on procedural grounds.  That one change would help employers across the country - and encourage them to try out more new employees.

But note - it is a change that Parliament needs to make, not the Courts.  The Courts (once again) are taking the flack from politicians for doing exactly what those same politicians ordered them to do.


  1. She still should have resigned

  2. That would have been the sensible and honourable thing to do.

    Mind you, if she'd had the degree of awareness and ability necessary to have been capable of that, she might not have got into the situation she did.

  3. "The Courts (once again) are taking the flack from politicians for doing exactly what those same politicians ordered them to do."

    Once again, the politicians have realised that the rules apply to them, and that's not what they intended when they drew them up, god damnit!

  4. the utter brass neck of Balls to flagrantly break the employment laws that his party imposed on the rest of us, and then waltz off leaving the bill on our laps.


    Blimey, £1m for not having the opportunity to attend a five minute meeting which she wouldn't have wanted to attend anyway. I have gone wrong somewhere.

  5. Julia - Yes, it's one of the two stock answers:
    (i) I know that's what the law I wrote says, but it's not what I wanted it to mean,and
    (ii) What? You mean I have to abide by it as well as you little people?

    Measured - I'd rather have the clear conscience than the cash. Peter Connolly will still be dead, after all. But yes, there does seem to be a degree of disproportionality in the figure. It will be interesting to see what is actually awarded.

    Mr Q - thank you!

  6. Correct.

    This was neatly summed up by Tim Worstall (referring to an immigration case as it happened): in Britain we have the rule of law, not the rule of the state.

    Amen to that.

  7. Just finished a tribunal.Senior executive been sacked claiming unfair dismissal.

    The defending party was dismissed for gross misconduct.
    1. purchasing on contract fleet vehicles totaling £80,000 without approval.{ this normally indicates a kickback somewhere. Hard to prove so exceeding authority is used to justify dismissal, which is also hard to win at a tribunal.

    2. Using company credit card for private use.Hotels, girlfriends travel, unauthorised items etc. Easy to prove. Can be difficult to justify dismissal depending on the tribunal.

    3. Using company data to secure the defendant a post at a rival company.

    4. Various non-compliance issues.

    Unfairley dismissed was claimeing £50,000 compensation + costs + anything else could think of.Car-Laptop-phone-holiday pay etc

    Claimant was breaching a golden hello '£25k' which the company took the unusual step of demanding back. As the case progressed the defendants 'no win no fee' firm pulled out, realising claimant had been lying.
    On day of tribunal claimant withdrew.

    This was as straightforward as they come. Plenty of evidence of wrongdoing, plenty of grounds for dismissal.
    Procedurally, not too bad...few holes, but not unfairly dismissed.

    Cost to claimant = £0
    Cost to company defending = £19,000
    No costs.

  8. BQ, I am not sure Mr Patently is arguing that the law is good, but it is still the law and it should be followed.

  9. When I was volunteering at the RCJ Advice Bureau, a retired gentleman came in. He had an employment claim. His difficulty was that he was very upset because he had applied for this job and not been selected for interview for a job as a chemical engineer. He had filed a claim against the UK subsidiary alleging age discrimination and received a snooty letter back from them. Could I help him?

    As we talked, he stopped pretending to be upset and started to talk. He devoted two days a week to 'this hobby'. He always chose to apply for specialist scientific positions, advertised in trade magazines, where the parent company was foreign and he made sure he was overqualified for the role.

    He had about four applications on the go at that time and had only been doing it for six months to supplement his pension. He had already made some £5,000 in early settlements. I wonder where he is now? Probably on a beach in Majorca.

    (My apologies if I have told you this before.)

  10. BE. I fully agree with Patently.The law is complicated, but clear.

    I was only pointing out how expensive these stupid tribunals are. In that case, which is almost open and shut, the firm 'won' but still had to payout nearly £20k. {firm since gone into administration. Out of despair more than anything I shouldn't wonder. This was their second case in a short space of time. Pyrrhic victory both times.}

    Originally tribunals were away from 'legalese.' They weren't that different from judge Judy. If employer behaved badly, withheld pay, no reasons for dismissal etc, they'd lose.

    But now they are very legal. If the employer does not have legal representation they will probably lose. Lose for not enacting 'procedures' properly, rather than not having any grounds for doing whatever it has done.

  11. Measured:
    I can give you any number of those stories that I have been involved in.
    Been caught out too.

    Just remembered a non related one.
    Once had a long term sickie on the books for 5 years because HR were too scared to bring action, even though they had proof that this 'too sick too perform any work' individual was on skiing holiday with other members of the same firm.

    Sure Mr P has his share of stories too?

  12. Yes, my argument is that the law is far from ideal, but that it is still the law nevertheless, and should be followed - especially by those from the party responsible for bringing much of them into force.

    M - I am not in the least surprised - not a shred.

    BQ, that case is awful but sadly typical. The consistent advice which I have been given as an employer is that I can do whatever I wish, so long as I follow the right procedure absolutely to the letter, and am prepared to wait while the procedure works through. This is insane. It helps neither the employee nor the employer.

    It is the rule of lawyers, not the rule of justice.

  13. We need a new court of Equity!