19 March 2019 - Article
As every lawyer knows, ignorance of the law is no defence. In the past week or so, I have found myself irritated by the press and politicians' inability to refer to employment law without making a hash of it. In fact, their tendency to misunderstand the law (deliberately or otherwise) is not peculiar to the employment law field, but, as an employment lawyer, that is what riles me most. Last week, one key untruth was spouted repeatedly about the Sharon Shoesmith settlement. However you feel about this emotive case, it is simply wrong to say that her reported £600,000 settlement sum was for “unfair dismissal”. The fact is that Ms Shoesmith won a judicial review application against the Secretary of State and the London Borough of Haringey — not an unfair dismissal claim. It was held by the Court of Appeal that the direction of the then Secretary of State, Ed Balls to remove Ms Shoesmith from office – as announced at the now infamous press conference – was unlawful. This direction was followed by a rushed disciplinary process carried out by her employer, Haringey where the outcome was a fait accompli. One of the key issues in the judgment was that Ms Shoesmith was not given the opportunity to state her case. As Lord Justice Maurice Kay put it in his decision: “I find it a deeply unattractive proposition that the mere juxtaposition of a state of affairs and a person who is ‘accountable' should mean that there is nothing that that person might say which could conceivably explain, excuse or mitigate her predicament. ‘Accountability' is not synonymous with ‘Heads must roll'”. In these circumstances, Ms Shoesmith was left with the argument that, since she had never been lawfully dismissed, she was entitled to back pay from December 2008 until her employment lawfully came to an end (which it had not done prior to the settlement). So, this was not a standard unfair dismissal case and, in the light of the decision of the Court of Appeal, the reported settlement sum seems to be a realistic assessment of what Ms Shoesmith might be awarded. This may not be headline grabbing stuff, but it is the true position. Then, it was David Cameron's turn to get the law wrong during Prime Minister's Questions. The exchange went like this: Question (from Diana Johnson, MP): “Does the Prime Minister think it fair that a sacked pregnant woman will now have to pay £1,200 to take a maternity discrimination case to an employment tribunal?” Answer (from David Cameron): “It is very important for people to have access to employment tribunals, and they do under this Government. One thing that we have done is ensure that people do not earn such rights until they have worked for a business for two years, and I think that that is the right approach.” I beg your pardon, Mr Cameron? Are you suggesting that women now need two years' service to make a claim for maternity discrimination? To be clear, there is not, and has never been, any such requirement. Understandably, Ms Johnson has since written a letter to Mr Cameron stating that she was “puzzled” by his response, which was incorrect and made no attempt to answer her question. David Cameron suggested recently that he would like to do a job swap with his brother, Alex Cameron QC. Based on his shaky understanding of the law, I would suggest he sticks to his day job.