On the level

However unpopular or culpable an employee seems to be, any dismissal process against them has to be just and impartial, says Richard Bird, even one instigated by the secretary of state.

When someone is dismissed, it must be on specified grounds and the dismissal process must observe what used to be called natural justice and the courts now describe as 'fairness'. Otherwise, although a tribunal may decide that the member of staff would have been dismissed anyway and may reduce the award, the employer will still be answerable for unfair dismissal one way or another.

Two cases illustrate this: one splashed all over the national press and the other creeping out obscurely in law reports.

The notorious case is that of Sharon Shoesmith, former director of children's services for Haringey Council in London. A child died and the borough had him on a safeguarding list. The serious case review (SCR) was chaired by Sharon Shoesmith as the director, in line with the current guidance. It concluded that, though they were up against a deceiving parent, there had been failures and there were lessons for all services. Not different from many other SCRs.

However, Haringey was not the normal context. It was the borough which removed 8-year-old Victoria Climbié from its children at risk register the day she was finally murdered and where Lord Laming was moved to write: "It is not to the handful of hapless... front-line staff that I direct most criticism... While the standard of work done by those with direct contact with her was generally of very poor quality, the greatest failure rests with the managers and senior members of the authorities whose task it was to ensure that services for children like Victoria were properly financed, staffed, and able to deliver good quality support."

Not entirely surprisingly, the press concluded that Haringey had learned nothing.

As Secretary of State for Children, Ed Balls ordered a joint area review by the various inspectorates. In its review, Ofsted followed its normal practice by making criticisms but not naming names.

However, between Ofsted's chief inspector and Mr Balls, names were named. Seemingly, on the basis of that conversation, he required Haringey to remove Ms Shoesmith from her post, using powers available to him.

Although removed from her post, she was still legally Haringey's employee and the council, again on the basis of remarks made in private, duly dismissed her on the grounds that they had "lost trust and confidence in her".

It may well be that the condition of child protection in Haringey was so bad that Sharon Shoesmith deserved to be dismissed for its failures; but when her case reached the Court of Appeal, the court found for her.

It found that the secretary of state had acted unfairly; Ms Shoesmith did not know the specific case against her and so had no chance of addressing it. Haringey had made the same error and, moreover, "breach of trust and confidence" had a strict legal meaning: that an employee had acted in such a way as to demonstrate that she had no intention of fulfilling the terms of the contract. That was not the case here.

If this ruling brings to mind the dictum, "Be you never so high, the law is above you", the other is more homely. DB Schenker Rail (UK) Ltd v Doolan involved a transport manager who found his work too demanding and went off sick with work-related stress. The company, through HR, consulted an occupational psychologist (OP) who advised that the stresses of the post, and any other post the company could offer, would be too great. He was dismissed on grounds of capability.

The case turned on whether the firm was acting fairly in asking for, and then acting on, an opinion from the OP when the employee's GP did not think it appropriate. The employment tribunal decided it was not but the employment appeal tribunal overruled.

It said that the test for fairness in capability is the same as for conduct: an honest belief on the part of the employer that the employee is incapable, after such investigation as is reasonable. The referral was a reasonable investigation.

These two cases may have further to go but both make the point that the employer must act fairly.

The investigation must be reasonable, asking the right questions of the right people, and it must be proportionate to the resources of the employer. The transport firm got it right. Schools and colleges should follow its example.

• Richard Bird is ASCL's legal consultant
  

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