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Particularly adept when it comes to advising on technical and complex employment law problems.

The Judgment in Shoesmith

As you are aware, the case of Sharon Shoesmith is proceeding to the Supreme Court.

The case is of greatest interst to public lawyers. The issues to be determined turn more on principles of public law, than they do on principles of employment law.

However the Court of Appeal Judgment contains the following paragraph

 73. I do not feel able to reach the same conclusion. I suspect that one, perhaps the main, reason for that is that, as I have explained, I do not take the same view as the Judge did on the question of “accountability”. But nor do I share his confidence that nothing that Ms Shoesmith could have said would or could have made any difference. The well-known passage from the judgment of Megarry J in John v Rees [1970] 1 Ch 345, 402, is often cited, not infrequently in forlorn circumstances, but in my view it resonates here:

“As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events.”

74. I confess that I have more often rejected attempts to benefit from those wise words in particular cases than I have been swayed by them. In the present case, however, they seem to me to be highly germane in relation to the challenge to the decisions of the Secretary of State. Put another way, this is not such a clear case that I feel able to say “no difference” without risking inappropriate encroachment into “the forbidden territory of evaluating the substantial merits of the decision”.

If the recognition of this point survives the Supreme Court case, it is unlikely to change substantive employment law. However, it may serve as a useful reminder to some Tribunals when faced with a Polkey submission. Quote with care, but it may come in useful.

Read the full Judgment here:

Update: The Supreme Court has refused leave to appeal:

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