Sharon Shoesmith: a lesson in procedural fairness

Sharon Shoesmith, the former director of children's services at Haringey Council who was sacked following the death of baby P, a child under the watch of the service, has won an appeal in her unfair dismissal case at the Court of Appeal.  This ruling is enormously damaging for Haringey Council. The council's reputation is already in tatters following the media frenzy around the death of Baby P, and their kneejerk reaction of apportioning blame and unceremoniously sacking Ms Shoesmith, while at the time may have taken the heat off them by giving the media a scapegoat to focus on, has now come back to haunt them. 

This is a civil case, not a criminal one, and it's not the  place of the court to decide whether Sharon Shoesmith was at fault, partially or wholly to blame for the death of Baby P.  What is in under examination here is the way that she was treated in her dismissal from her job.  In his judgement, Lord Justice Maurice Kay said: “Whatever her shortcomings may have been, she was entitled to be treated lawfully and fairly and not simply and summarily scapegoated.”

Procedural fairness is not a tick-box exercise: it's a basic legal foundation which is intended to ensure that the principles of natural justice are adhered to.  The old adage of 'innocent until proven guilty' seems too often to be thrown out the window in high-profile cases, when organisations find themselves under scrutiny and nominate a fall guy to be the focus of the blame.  No matter what a person has done, or is alleged to have done, no matter how obvious it may seem that they are at fault, it is always necessary for the performance of justice to give them the opportunity to defend themselves and give their side of the story.  Our society wouldn't dream of convicting a murderer without giving them a fair trial, even if there were 100 witnesses pointing to them and saying they were guilty.  So why would we sack someone accused of misconduct without giving them the opportunity to defend themselves?  Not only is this the right thing to do in terms of allowing person their basic human rights, it also makes sound business sense.  Only by a full, fair and impartial investigation into where things went wrong - which means hearing all sides of the story - can an organisation really get to problems and begin to set about fixing them.

Ms Shoesmith has caused an outrage in the press by stating that she doesn't 'do blame'.  The media interprets this as her trying to shrug off any responsibility for what went wrong.  But not doing blame is different than not doing accountability.  It is entirely right that people in a position of power should be held accountable for what happens on their watch, but they are also human beings and need to be treated with respect and fairness, even when they make mistakes.  Blame is in fact anathema to accountability; it makes people afraid to challenge others, afraid to admit mistakes and quick to pass the buck.  It means that the same mistakes get made - and hidden - over and over again.  The procedural fairness test is not onerous: simply give people a fair hearing.  Let them know what they are accused of, let them be accompanied, let them defend themselves.  Fail to do so, and you could find you are the one defending your decisions and actions in a court of law.

The Agency Workers Regs and the law of unintended consequences

The Temporary Agency Work Directive (2008/104/EC) is the third piece of legislation to come from the EU to protect the rights of atypical workers.  The other two directives, relating to fixed-term and part-time employees, have already been enacted into UK law.  The focus of the directive is to provide agency workers with equal rights on pay and employment conditions as regular, 'permanent' employees carrying out the same work in the same business.  The rights will be implemented into UK law by the Agency Workers Regulations 2010, which will come into force on 1^st October 2011.  

This seems a fairly straightforward proposition, intended to address the issue of exploitation of workers in certain, not insignificant sections of the temporary workforce, such as in catering, cleaning,  and seasonal agricultural work, where unskilled, vulnerable workers are often poorly paid and treated.  

However, as in any complex system, an intervention will have unintended consequence.  With this legislation, there is the potential to impact on the employment status of agency workers.   While the rights extended to agency workers under the regulations are fairly limited and narrow in scope, if they start to become legally an employee of the end-user that confers a whole other set of rights and liabilities which employers using agency workers as a flexible, peripheral workforce are keen to avoid – most notably the right to protection from unfair dismissal. 

The employment status of agency workers is an area which has been debated in the courts since Wickens (1) in 1984, with a tirade of confusing and contradictory cases not helping to make the situation any clearer.  While the court in Wickens found that an agency didn't have sufficient control or mutuality of obligations for an employment relationship to exist, even when their contract expressly stated it was a contract of service, McMeecham (2) in stark contrast found that a worker can be the employee of the agency on each individual assignment, even where the contract expressly stated that the individual was self-employed!  Later decisions, plus the rewriting of agency contracts, now mean that it is unlikely that a worker will be found the employee of the agency, unless there are exceptional circumstances.  To further muddy the waters, the courts have also on several occasions implied a contract of employment between the agency worker and the end-user.   

The Agency Worker Regulations do not apply to those ‘genuinely in business on their own account’ – ie to the self-employed, who make up a high proportion of agency workers in more skilled areas such as engineering and IT.  But it is still up to the courts to decide whether a worker engaged via their own service company through an agency to the end-user is genuinely self-employed or an employee of the end-user or agency.  A particularly concerning case for end-users of agency workers is Cable and Wireless plc v Muscat.   In this case, the worker provided his services to the end-user via his own service company through an independent employment agency, the contracts expressly stated that he was "self-employed", but the Court of Appeal still found that he could be an employee of the end-user.  Despite the existence of a chain of contracts, the elements of control and mutuality of obligation were found to be strong enough to disregard the fact that the end-user did not directly pay the agency worker.  The general pattern in recent cases is to look for what has been called the 'irreducible minimum ' of control and mutuality of obligations, and also to the degree to which the agency worker is an integral part of the organisation.  This is the part where the AWR might have an impact.

The regulations are likely to have the effect of forcing end-users to more fully integrate agency workers into their organisations by allowing them access to staff facilities and treating them equally in terms of working hours, breaks.    It is likely that following the implementation of the regulations, more agency workers will start to look increasingly like employees of the end-user as they become treated more like their own staff.  It will be interesting to see how the first post implementation cases on unfair dismissal look and whether in the long-term this could mean the demise of agency workers as a cheap and flexible solution to fluctuating workloads.

(1)Wickens v Champion Employment [1984] ICR 365, EAT

(2)McMeecham v Secretary of State for Employment [1995] ICR 444, CA

(3) Cable and Wireless plc v Muscat [2006] ICR 975, CA

APL : a giant leap for womankind

Fathers of babies born in the UK yesterday are the first to benefit from the right to Additional Paternity Leave and Pay under the Additional Paternity Leave Regulations 2010, but the real beneficiaries of this change will be working women.

My jaw dropped one day when I worked as a recruitment consultant.  I was myself pregnant at the time and when taking a job spec from a client, he told me that he would not consider any women between 25 and 35 for the role (a professional role in an engineering company) as he didn't want them going off on maternity leave.   It has long been established in common law that discrimination on the grounds of pregnancy is a form of sex discrimination, and this was written into statute in a 2005 amendment to the Sex Discrimination Act 1975.  Despite this, a survey conducted by the EOC in the same year found that 45% of women experienced some form of tangible discrimination at work during their pregnancy, and for 7% this resulted in an involuntary or constructive dismissal (Equal Opportunities Commission).  This study looked at women who were already in employment, but it is clear that if prejudice is ingrained to this extent, it inevitably spills over into the recruitment and selection process, as evidenced by my blatantly discriminatory client.  Despite it being illegal (not to mention immoral and illogical), many employers still try to avoid hiring women who are pregnant or of childbearing age, for fear of the perceived additional burden of recruiting and managing temporary cover while they take leave. 

Now that fathers can also take up to 6 months' leave, it makes even less sense to discriminate against young women in the recruitment pool: men are now just as able to take an extended period of leave as their partners on the birth of a child.  Of course, the people who hold the prejudices will likely believe that men will seldom take this leave, as they may perceive men as the breadwinners and women the child-rearers, but in fact this very piece of legislation could help to redress this imbalance.  Previously there was no choice in the matter so the genders were forced into these traditional roles, but increasingly we live in a society of dual career families, and the gender pay gap, although still unacceptable,  continues to narrow every year (Office for National Statistics): so for many couples it will make practical and financial sense for the mother to return to work sooner and the father to take leave.  Once this legislation has had time to bed in and it becomes commonplace for fathers to take APL, the playing field for men and women applying for the same jobs will become a little more level.

Danger Money

Sky news reports this morning that the UK Government paid bribes to Libyan officials to get British citizens evacuated from the chaos of the civil uprising.

The Bribery Act 2010 doesn't officially come into force until April of this year, but one of the main provisions makes it a criminal offence to bribe a public official to obtain an advantage in the conduct of business.  Granted, the government evacuating its citizens from danger is not 'the conduct of business', but what if it was a company evacuating their employees?  They were only in Libya to conduct business, so surely this would be caught by the Act?  And what about other situations where an employee finds themselves in danger while overseas on assignment and the only way out is to offer a bribe?  Are they then to face prosecution?

Of course, another legal requirement on employers is to protect the health, safety and welfare of their employees. Which of these legal imperatives is to take precendent?  Currently the only defence in the case of a breach of the Bribery Act is to evidence that 'adequate procedures' are in place to prevent Bribery taking place, but I expect that once cases start coming through the courts we may find a defence of extenuating circumstances creeping in when the courts realise that the zero tolerance approach of the Bribery Act is perhaps unachievably idealistic.


http://news.sky.com/skynews/Home/Libya-Britons-Evacuation-From-Tripoli-Continues-Amid-Descriptions-Of-Violent-Hell-In-Libya/Article/201102415940550?lpos=Home_Top_Stories_Header_2&lid=ARTICLE_15940550_Libya%3A_Britons_Evacuation_From_Tripoli_Continues_Amid_Descriptions_Of_Violent_Hell_In_Libya