Judge Roger Kaye QC:
Introduction
- The claimant, Ms Sheila Mary Lock, is the former Chief Executive of the defendant, Leicester City Council. This was a contractual post entered into between the claimant and defendant on the 3 January 2006. Incorporated into her contract as Chief Executive, the claimant was also the defendant's head of paid service, a statutory position which a "relevant" local authority (of which it is common ground the defendant was one) is required to designate one of its officers to hold and fill under the provisions of the Local Government and Housing Act 1989 ("the 1989 Act").
- The claimant's case for judicial review is largely based on a letter dated 8 July 2011 in which, the claimant contends, the defendant sought to dismiss her from the post of Chief Executive and from her functions as head of paid service, in consequence of its reorganisation following its decision to move over to a system of being run by elected Mayors.
- The issue is whether those dismissals were effective or, as the claimant contends, were unlawful. The claimant commenced judicial review proceedings on 6 October 2011 seeking to quash the decision to dismiss her, reinstatement and damages. On 5 January 2012, permission having been originally refused by HHJ Langan QC, following an oral renewal hearing HHJ Shaun Spencer QC sitting as a judge of this court allowed the claim to proceed. The claimant's main case is that her dismissal was unlawful, not in accordance with the relevant provisions and procedure set out in Schedule 1 to the Local Authorities (Standing Orders)(England) Regulations 2001 (SI 2001 No 3384) ("the 2001 Regulations"). She also maintains that the defendant as a public authority acted in contravention of her human rights under the European Convention of Human Rights and Fundamental Freedoms ("ECHR") in breach of s 6 of the Human Rights Act 1998. Reliance is placed on article 6 (right to fair hearing) and article 8 (right to respect for private life).
The Facts
- It is not in dispute that the defendant is a local authority within the meaning of the Local Government Act 1972, the 1989 Act and the Local Government Act 2000.
- The claimant, who had commenced employment in local government in about 1987, was employed by the defendant as its Director of Children's Services on 3 January 2006. In January 2008 she was promoted to temporary chief executive and confirmed in that post on 28 August 2008 as the defendant's Chief Executive.
- Under s 4(1)(a) of the 1989 Act it was and is the statutory duty of every "relevant authority" (which, it is common ground, extended to the defendant) "to designate one of their officers as the head of their paid service". It is also common ground that the claimant, as the Chief Executive of the defendant council, became the defendant's head of their paid service on assuming her employment as Chief Executive and remained so until her dismissal or purported dismissal.
- On 22 April 2009 the claimant received confirmation of her "Job Description" in the form of a written document[1]. On the first page this contained an "Overall Purpose of this Post" under the heading or box "Post Title: Chief Executive" commencing in the following words:
"As Head of Paid Service ensure the effective strategic leadership of the Councils senior management team and the Councils principal policy adviser to the Leader and Cabinet in order to support the delivery of excellent services in accordance with Council policy, budgetary and statutory requirement to ensure its overall strategic objectives are met."
- The claimant's contract and Job Description incorporated and listed other specified tasks, various terms and conditions not material for present purposes.
- In January 2011 the then MP for Leicester, Sir Peter Soulsby, announced his intention to stand for the newly proposed post of directly elected Mayor of the City of Leicester. It was stated on a number of occasions that part of his platform included the proposed abolition of the post and role of Chief Executive (principally on the grounds of efficiency, on the basis the City did not need both an executive elected Mayor and a separate, Chief Executive). One of the City Councillors and cabinet members, a Mr Rory Palmer, resigned his post on the Council cabinet in order to assist Sir Peter actively in his campaign and to act as his election agent.
- In the meantime, at the end of 2010 the claimant, having been subjected to a sustained campaign of harassment over four years from an employee of the defendant (who was subsequently convicted of the harassment under the Protection from Harassment Act 1998 at Leicester Crown Court in December 2011 and sentenced to two years imprisonment), was off work for a number of weeks owing to the stress relating to the abuse returning to work for some three weeks in January 2011. Following a further period off work, she returned for 2-3 days per week for a further three weeks or so in February and March 2011 since when she has not returned to work.
- The claimant's incapacity owing to the work-related stress resulting from the systematic harassment she had received was well known to the defendant council. Indeed in February 2011 the council was formally notified that stress owing to the harassment was the reason for the claimant's being off work by the Council's occupational health physician.
- On 6 May 2011 Sir Peter was elected as the first directly elected City Mayor of the defendant. Following this the claimant was informed, both by telephone and letter, of intentions to consult on the proposals for abolition of the post of Chief Executive. On 16 May 2011 at a press conference, he confirmed his proposal to abolish the role of Chief Executive and to remove the defendant from her office. He further announced a review of every part of senior management of the Council and to set in train a procedure for identifying a suitable candidate to fill the role of head of paid service.
- At the same press conference the Council's Director of Human Resources ("DHR") informed the media that the claimant was off work ill and would be off for at least a further four weeks. She informed the press that any redundancy pay to the claimant would not be large as she had only been in post for three years. (In fact she had been in continuous employment by local authorities for some 22 years reckonable service as the Council later recognised.)
- The claimant was duly formally informed of the proposal to abolish her post by letter the same day. She had of course been previously alerted on 13 May and as a result consulted solicitors who replied on her behalf on 18 May 2011. A consultation meeting was held on 23 May which the claimant did not attend but at which she was represented by her solicitors.
- On 24 May 2011 the claimant submitted a complaint by way of grievance against the Council in the form of the City Mayor and DHR. She complained of the manner of her treatment as a woman, of the Council's failure to follow correct procedures, of the manner of the announcement to the media including disclosing her individual employment circumstances to the press, of the failure to correct misleading statements to the press, the failure to consult regarding the abolition of her post, the failure to exercise their duty of care to her and failure to follow the advice from the occupational health advisors.
- By e-mail of 1 June 2011 the claimant was informed that the issues she raised should not have been raised with the City Mayor but laid before the Employees' Committee of the Council. (Again, the Council later admitted this contention had been wrong.)
- On 2 June 2011 the Employees' Committee, chaired by the same Councillor Mr Rory Palmer, considered a report in the form of a two page business case to abolish the role of Chief Executive and also considered other reports aimed at restructuring the senior management posts including the proposal to make the role of Chief Executive redundant. The Committee resolved the proposals should proceed and gave the City Mayor and Cabinet seven days to object.
- The claimant's solicitors were informed of the outcome of this meeting by letter of 3 June 2011 and informed by email of the next steps in dealing with the proposals. The Executive Members of the Council were also asked if they had any objection to the abolition of the post of Chief Executive. Apparently there were none.
- Also on 2 June 2011 the Council was again advised by its occupational health physician that the claimant was suffering from anxiety, depression and post-traumatic stress arising from the harassment.
- Shortly after there was a further leak to the media which the defendant accepted was serious. Objections from the claimant regarding her proposed redundancy were also submitted on 16 June 2011 and responded to by the defendant on 23 June.
- On 29 June 2011 at a further meeting of the Employees' Committee, again chaired by Mr Palmer, consideration was given to whether it should support a proposal to abolish or "delete" the post of Chief Executive. Logically that was right. Before considering the position of the claimant it was inevitably right to consider whether the post of Chief Executive should be retained or deleted. That, as the Minutes expressly noted, was the remit and terms of reference of that Committee[2]. It was recorded that no objections had been received from members of the Executive and further noted in supporting the proposal[3]:
"… that a Special Full Council meeting will be arranged in order to approve the decision to delete the post of Chief Executive, firstly, in accordance with the statutory regulations applicable to deletion of the post of Head of Paid Service and, secondly, if so pursued act as the appeal stage in relation to the Committee's decision."
- The result of the meeting was emailed to the claimant's solicitors.
- By letter dated 8 July 2011[4] the DHR wrote to the claimant giving (or purporting to give) her 4 months' notice of dismissal by reason of redundancy expiring on 10 November 2011. The letter was headed "Notice of Redundancy". The opening paragraphs of the letter are of some importance and stated:
"As you are aware the Employees Committee met on 29th June 2011 to further consider the proposal to delete the post of Chief Executive and a copy of the minutes of that meeting will be forwarded to you when they have been approved by the relevant Elected Members. I can confirm that the decision of the Employees Committee was that the post of Chief Executive should be deleted. It is therefore with regret that I have to write to you to confirm that your employment with Leicester City Council will end on 10th November, 2011 by reason of redundancy subject to approval by full Council. Please, however, treat this letter as formal notice of redundancy.
"I understand that you are aware that the [2001 Regulations] sets out a process to be followed in relation to any decision to dismiss a Head of Paid Service which includes approval by full Council. The Authority has endeavoured not only to follow this process but also to incorporate the legal principles that apply to any redundancy process which includes a right of appeal. It is therefore proposed that Council will not only consider whether or not to approve the decision to delete the post of Chief Executive but also any appeal received from you regarding the decision of the Employees Committee to delete the post of Chief Executive which has resulted in this notice to dismiss you by reason of redundancy. Should you wish to appeal against the decision to dismiss you please write to me within the next 15 days i.e. by 26th July, 2011 setting out your grounds of appeal. The reason for giving you longer than the standard 10 days is to take into account your current ill health."
- Before formally appealing a further meeting was held, attended by the claimant, to discuss redundancy issues[5]. The claimant then formally appealed by an 11 page document submitted under cover of a 2 page letter dated 29 July 2011 on her behalf by her solicitors[6] (no point was taken about time).
- Her appeal (and the response[7]) was considered at a meeting of the full Council on 4-5 August 2011 and dismissed. I have seen the Minutes of this Committee[8] so far as related to the matters relevant to this case. It is clear there was a very full and anxious debate extending over seven hours and lasting from 5pm to just after midnight. The full Council resolved to dismiss the claimant's appeal against abolishing the post of Chief Executive, to approve her dismissal by reason of redundancy as a result of the deletion of the post of Chief Executive, and to appoint the deputy Chief Executive as temporary head of paid service pending the outcome of the senior management review[9].
- On 12 August 2011 the DHR wrote again to the claimant informing her "that the decision of the Council at the meeting was to dismiss your appeal and that in the light of the decision to dismiss the appeal the Council approved your dismissal by reason of the redundancy as a result of the deletion of the post of Chief Executive …". The DHR further informed the claimant that notice period would expire on 10 November 2011.
- On 6 October 2011 the claimant lodged her present application for judicial review of the decision to dismiss her.
- Following commencement of the proceedings but before the substantive hearing, the following occurred:
• On 24 October 2011 the claimant commenced proceedings in the Employment Tribunal. Those proceedings are currently stayed pending the outcome of the claimant's application for judicial review.
• On 16 February 2012 the Acting City Solicitor wrote to the claimant informing her that the DHR had overlooked adjusting the starting date of her redundancy to reflect the date of the Council resolution and stated that the Council would pay her salary over the period from 10 November 2011 to 12 December 2011. This was on the footing that her notice of dismissal had taken place from 12 August 2011 (following the resolution of the full Council) not 8 July 2011.
The Legal Framework
- In order to understand the rival contentions it may be useful at this stage to set out, non-contentiously, the legal framework or context of this case.
- The principle enunciated by Lord Bingham in McLaughlin v Governor of the Cayman Islands [2007] 1 WLR 2839 at para. 14 is not in dispute:
"It is a settled principle of law that if a public authority purports to dismiss the holder of a public office in excess of its powers, or in breach of natural justice, or unlawfully (categories which overlap), the dismissal is, as between the public authority and the office-holder, null, void and without legal effect, at any rate once a court of competent jurisdiction so declares or orders. Thus the office-holder remains in office, entitled to the remuneration attaching to such office, so long as he remains ready, willing and able to render the service required of him, until his tenure of office is lawfully brought to an end by resignation or lawful dismissal."
- Turning next to the legislative framework, I have previously mentioned that every "relevant authority" (which for these purposes included the defendant) must designate one of their officers as head of their paid service (see the 1989 Act, ss 4(1)(a), 21(1)(aa)). The local authority must provide the officer concerned with staff, accommodation and other resources sufficient to undertake his duties under the section (s 4(1)(b)).
- The head of paid service must, if he considers it appropriate to do so, prepare a report to the council setting out his proposals for dealing with coordination of the authority's various functions, as to the number and grades of staff needed for the discharge of their functions and appointment, organisation and proper management of the staff (s 4(2)(3)).
- Section 8 of the 1989 Act enables the Secretary of State to make regulations requiring relevant local authorities to adopt standing orders with respect to their staff including provisions for regulating their dismissal. The 2001 Regulations are regulations made under, amongst other enabling provisions, s 8.
- Regulation 3 of the 2001 Regulations requires such local authorities to incorporate in their standing orders relating to staff the provisions in Part I of Schedule 1 to the Regulations or provisions to like effect.
- It is common ground that the defendant applied the provisions in Part I of Schedule 1. In such circumstances, by Regulation 5, "the power to approve the … dismissal of the head of the authority's paid service shall be exercised by the authority itself".
- Central to this case are the provisions of paragraph 4(1) of Part I of Schedule 1 to the 2001 Regulations. This provides as follows:
"Where a committee, sub-committee or officer is discharging, on behalf of the authority, the function of the appointment or dismissal of an officer designated as the head of the authority's paid service, the authority must approve that appointment before an offer of appointment is made to him or, as the case may be, must approve that dismissal before notice of dismissal is given to him."
- Paragraph 6 of the same Schedule is also relevant, and provides:
"6. - (1) In this paragraph, "dismissor" means, in relation to the dismissal of an officer of the authority, the authority or, where a committee, sub-committee or another officer is discharging the function of dismissal on behalf of the authority, that committee, sub-committee or other officer, as the case may be.
(2) Notice of the dismissal of an officer referred to in sub-paragraph (a), (b), (c) or (d) of paragraph 3 must not be given by the dismissor until -
(a) the dismissor has notified the proper officer of the name of the person who the dismissor wishes to dismiss and any other particulars which the dismissor considers are relevant to the dismissal;
(b) the proper officer has notified every member of the executive of the authority of -
(i) the name of the person who the dismissor wishes to dismiss;
(ii) any other particulars relevant to the dismissal which the dismissor has notified to the proper officer; and
(iii) the period within which any objection to the dismissal is to be made by the elected mayor on behalf of the executive to the proper officer; and
(c) either -
(i) the elected mayor has, within the period specified in the notice under sub-paragraph (b)(iii), notified the dismissor that neither he nor any other member of the executive has any objection to the dismissal;
(ii) the proper officer has notified the dismissor that no objection was received by him within that period from the elected mayor; or
(iii) the dismissor is satisfied that any objection received from the elected mayor within that period is not material or is not well-founded."
- The claimant was within paragraph 6(2) as an officer specifically mentioned in the paragraph 3(a) referred to.
The Claimant's Contentions
- Mr David Jones, on behalf of the claimant, launches his attack on five Grounds:
• First, he submits that the letter of 8 July 2011 giving the claimant notice of termination was in contravention of paragraph 4(1) of Schedule 1 to the 2001 Regulations in that it purported to dismiss the claimant before the defendant's full Council had approved the proposal to abolish the role of head of paid service.
• Second, he relies on unfairness and breach of article 6 of the ECHR in that the elected Mayor was required to consider whether there was any objection to the proposed removal of head of paid service whereas he had already announced his pre-determined intention to dispense with the post of chief executive;
• Third, he relies on unfairness and perception of bias (and a further breach of article 6) in the involvement of Cllr Palmer as chair of the Employees' Committee when he already supported the move to abolish the post of chief executive;
• Fourth, he submits that there was a failure to consider even whether the abolition of the post could be justified on financial grounds, the very premise on which abolition was based;
• Fifth, he refers to irrationality and unfair disclosure of the claimant's personal circumstances especially that of her medical condition in breach of her article 8 rights under the ECHR.
The Defendant's Response
- Mr Philip Coppel QC, on behalf of the defendant, responded that each of these Grounds of attack was "misconceived" as follows:
• Generally, each ground rested on the assumption that the defendant Council had made the claimant redundant or dismissed her (including from her office of head of paid service) by the letter of 8 July and also upon the further assumption that the dismissal of the claimant as Chief Executive necessarily resulted in her dismissal as head of paid service;
• As to the first Ground, this was misconceived, he submitted, on a number of grounds:
a) First, the claimant confused two posts: Chief Executive and head of paid service. The 2001 Regulations are concerned only with the latter (in the form of the person who was "designated" head of paid service), not the former. So far as the latter is concerned the Regulations contemplate two scenarios: dismissal by the authority itself and dismissal by a committee, sub-committee or officer on behalf of the authority (i.e. as agent for the authority). Paragraph 4 is only engaged with the second scenario. Where the decision is made by the authority itself, then paragraph 6 applies.
b) Second, in fact the letter of 8 July, properly read, did not dismiss the claimant at all (that was something the Employees' Committee could not do), it merely recommended dismissal. The letter made clear that this was subject to approval by the full Council, and gave her the opportunity to appeal and make representations to the full Council.
c) Further, neither the resolution of the Employees' Committee, nor the letter of 8 July dealt with her role as head of paid service. It was not concerned with that. Its remit was solely the consideration of her (employment) post as Chief Executive, namely whether that should be abolished. The claimant's dismissal as chief executive would not and could not necessarily result in the abolition of the statutory role of head of paid service.
d) What the letter attempted to do, Mr Coppel submitted, were two things: one to deal with the employment law requirement that there should be an appeal structure, second to deal with the problem that, under the 2001 Regulations, it was for the full Council to decide to dismiss a head of paid service (or approve it). Since the Employees' Committee had not dealt with the issue of head of paid service paragraph 4(1) did not apply; that Committee was not "discharging on behalf of the authority the function of the …. dismissal of an officer designated as the head of the authority's paid service". Instead the procedure in paragraph 6, and especially paragraph 6(2) had to be observed. Thus the full Council meeting of 4 August had to serve two purposes: appeal from the Employees' Committee recommending abolition of the post of Chief Executive and also the decision-making forum for the purposes of what to do about the head of paid service.
e) It was apparent from the claimant's appeal of 29 July that she understood that the Employees' Committee had made a recommendation, not a decision. The letter, more than once, referred to "proposals" in the context of the abolition of her post as Chief Executive.
f) The full Council meeting of 4-5 August was a lengthy meeting at which careful consideration was given to all the matters before them and only after a lengthy debate was it decided to dismiss the claimant by reason of redundancy having first decided to abolish the post of Chief Executive. It was apparent from the minutes that the decision (whether or not to dismiss the claimant) was one to be taken, not one that had been taken and needed approval or upholding or not as the case might be. The meeting resolved on three relevant matters: first to abolish the post of Chief Executive, second, to dismiss the claimant, and third, to appoint a temporary head of paid service pending the outcome of senior management review.
• As to the second Ground (Pre-Determination by the Mayor), Sir Peter (correctly) left the meeting and took no part in its deliberations or vote.
• As to the third Ground (Cllr Palmer), the minutes of 4 August record that Cllr Palmer declared he had pre-determined the matter of deletion of the post of Chief Executive and accordingly, as with Sir Peter, correctly left the meeting and took no part in the deliberations or vote.
• As to the fourth Ground (alleged failure to take into account relevant consideration), Mr Coppel pointed out that the claimant had been invited to make submissions following the recommendations of the Employees' Committee and had done so. These were circulated to members of the Council together with the Council's response. The long and detailed debate of the full Council does not suggest these matters were ignored or overlooked.
• As to the fifth Ground, the decision was not irrational but carefully reached after anxious consideration at every stage. The fact that some (and the claimant in particular) may disagree with the result (the abolition of the post of Chief Executive) does not of itself make the decision irrational. The reports, business case, and minutes of various meetings all show the care and thoroughness with which the decision and relevant resolutions were reached.
Discussion
Preliminary Points
- First, a few preliminary points must be borne in mind:
• A clear distinction must be made between the claimant's contractual position as Chief Executive and her statutory position as the designated head of paid service. In the case of the claimant her contractual position also included her statutory designated function. This court is concerned with the public office (a matter of public law), not the contractual employment (private law). This case is thus not like that of Mrs Shoesmith in R (Shoesmith) v Ofsted & Ors [2011] EWCA Civ 642 where Mrs Shoesmith's role was a wholly statutory one, Director of Children's Services, under the Children Act 2004.
• As noted above, dismissal of a public office holder by a public authority in excess of its powers, in breach of natural justice or unlawfully may well result in the dismissal being of no effect. It must, however, be borne in mind, as Mr Coppel also submitted, that judicial review is generally a remedy of last resort and this court will be slow to interfere where the claimant has an alternative remedy before another tribunal, internal or external. Here one of the functions of the claimant as Chief Executive was to hold office as head of paid service. Her dismissal as Chief Executive involves private law rights between her and the defendant based on her contract of employment. In respect of this the claimant already has an alternative remedy in the form of the Employment Tribunal.
• As Mr Jones rightly accepted, this court is also not concerned with the question whether Leicester City Council is better run with or without a Chief Executive. That is a matter for the Council. This court is concerned with procedure, and procedural unfairness as a matter of public law, not private law.
• It is true that the minutes of the full Council meeting of 4-5 August 2011 nowhere actually dismissed the claimant from her functions as head of paid service. In truth, in my judgment as I read the 1989 Act and the 2001 Regulations she did not need to be. The 1989 Act merely requires, by s 4(1(a) the local authority to "designate" one of their officers as the head of their paid service. The 2001 Regulations (whether considered as under paragraph 4 or 6 of Schedule 1) require certain procedures to be observed before that officer, so designated, can be given notice of dismissal.
- This left Mr Jones with something of a dilemma. He was not concerned in this court with anything other than the public law aspects of Mrs Lock's position. On that basis he had to focus (rightly in my view) on the procedural aspects leading to the dismissal of the claimant as Chief Executive insofar as they involved or related to the fact that she was also the designated head of paid service.
- I therefore now turn to consider each of Mr Jones's grounds.
Ground 1
- This Ground is the real core of this case. Here I was, at first, much tempted by Mr Jones's arguments that paragraph 4(1) was not complied with as regards the letter of the 8 July 2011. It is certainly an ill-judged and not well drafted letter having been headed "Notice of Redundancy" which was not open to the Employees' Committee. On any basis the matter had either to be decided upon by the full Council or approved by the full Council. The focus therefore was (or ought to have been) on the meeting of 4 August, not on the letter of 8 July.
- A review of the entire process from start to finish shows, in my judgment, that the defendant Council were keen to try and get things right both as a matter of employment law and statute (or Regulation). Part of the problem was the overlap of contractual role (Chief Executive) with statutory function (designated head of their paid service). The functions of the latter did not need to be incorporated into the job of the former but it was. (I intend no criticism of that; there may have been good and proper reasons for doing so.) But it helps, in my judgment, to separate out the contractual role and statutory function and consider how the position is viewed, as a matter of public law, solely looking at the claimant's dismissal or termination of her office as designated head of paid service.
- The dilemma (if that is the right word) before the Council was this: first, should the post of Chief Executive be "deleted", abolished, or made redundant? Second, if so, what was to happen to the person in that post -redundancy or employment elsewhere? The statutory functions and tasks attaching to the officer who was designated head of paid service could not be "deleted" since they were and are a statutory responsibility. The person so designated, however, could only be dismissed provided the correct procedures under the 2001 Regulations were observed. If the Chief Executive post was deleted and made redundant and if the person in that post was to be declared redundant and dismissed in consequence then, as here, where that person was also designated head of paid service, then the procedure for dealing with the redundancy of and dismissal of the Chief Executive had also to deal with the procedure for dismissing that person where he or she was also the designated head of paid service.
- Once that point is reached, I can well understand Mr Jones's criticisms of the infelicitous and ill-judged language and drafting of the letter of 8 July. He had at least 10 criticisms if not more of the language and terminology used - all of some cogency, not least the seeming conflation of the two issues: the post of Chief Executive and the dismissal (if such be the case) of the designated head of paid service. Indeed much of the dispute in this case was brought about by the unfortunate wording of this letter.
- But it has to be remembered that the letter is just that; it is not a lease or mortgage and must be read reasonably and sensibly and in context as it would be understood by a reasonable person receiving it with relevant knowledge. Thus read I am persuaded by Mr Coppel as to the letter's effect.
- It seems to me that the Council was indeed well alive to the dilemma posed above and sought to negotiate a tricky minefield to deal with the issue of the post of Chief Executive, as well as the employment and statutory rights of the person in that post who was also the designated head of paid service. Mr Jones submitted the Council confused and conflated these issues as one. That is understandable because the same officer was both Chief Executive and the designated head of paid service.
- I agree, as noted previously, that the letter of 8 July does not, at first reading, assist in dispelling this confusion and conflation but set in its context (and not entirely without the benefit of hindsight) it is reasonably clear what was going on. As Mr Coppel conceded the letter was attempting to bring a number of threads together albeit it did not convey that perfectly but, as he also submitted, the overall thrust was clear: that a final decision would be made on 4 August 2011. The "threads", reading the letter I hope reasonably, were these:
• First, the Employees' Committee had decided to "delete" the post of Chief Executive;
• Second, if implemented that would result in the claimant's employment ending by reason of redundancy;
• Third, however, that (i.e. abolition of the post of Chief Executive) was subject to approval by full Council;
• Fourth, the 2001 Regulations also set out a procedure to be followed in relation to dismissal of a person who was the designated head of paid service;
• Fifth, that procedure also included approval by the full Council;
• Sixth the local authority was endeavouring to observe not only that procedure (under the 2001 Regulations) but also the principles applicable on redundancy including affording the claimant a right of appeal;
• Seventh, accordingly, the claimant had a right of appeal against the decision to delete the post of Chief Executive and her consequent dismissal by reason of redundancy in view of that deletion.
- The whole implication of this unfortunately worded letter is that the decision to abolish the post of Chief Executive was supported by the Employees' Committee but the decision on that was for the full Council. Since the abolition would lead to her redundancy and termination of employment that also invoked the 2001 Regulations since she was the designated head of paid service. That too was something for the full Council. In short her appeal, representations, call it what you will, should all be made to the full Council. That, as I said, was where the focus lay.
- That the claimant and her advisers understood that this might at least be the implications of the letter is nowhere more graphically illustrated than by the fact that they responded by the submission of the 2 page letter and 11page appeal from her solicitors enclosing her detailed appeal.
- What the letter of 8 July should ideally have done (and did not do) is draw a clearer distinction between the three crucial aspects of the whole matter: deletion or non-deletion of the post of Chief Executive; the consequences to the claimant of that and her right of appeal in the event of redundancy; and the procedure relating to her dismissal as the designated head of paid service which could only be dealt with (under paragraph 6) by the full Council since the Employees' Committee was not dealing (as purported agent for the full Council) with that matter under paragraph 4 at all.
- Indeed it might have been better if these aspects had been spelt out with specific reference to particular paragraphs of the 2001 Regulations especially as the defendant was also well aware by this point that the claimant was professionally represented. The fact that the letter was also headed "Notice of Redundancy" and then got her effective date of termination of employment wrong (and accordingly her severance entitlement also wrong) also did not help.
- Thus whilst the letter referred to the 2001 Regulations it is clear from the history of events and the minutes of the Employees' Committee that this Committee was concerned only with the question whether the post of Chief Executive should be retained. If not retained certain consequences might flow, but these were matters for the full Council not the Employees' Committee. Accordingly, I accept Mr Coppel's submission that paragraph 4 of Schedule 1 to the 2001 Regulations is not engaged at all. The Employees' Committee was not tasked, as the agent of the local authority, with dismissing the claimant. That decision was for the full Council. Nor is there anything to suggest that paragraph 6 was not complied with.
- Once the decision of the full Council was clear, the letter of 12 August 2011 confirming the notice period expired on 10 November 2011 was an obvious mistake which was corrected by the letter of 16 February 2012, at least for the purposes of this court.
Grounds 2-5
- It is convenient to deal with Grounds 2-5 of Mr Jones' case on behalf of the claimant together.
- Grounds 2-3 (the involvement of Sir Peter Soulsby and Cllr Palmer) can be taken together since they both involve the same point. It is said Cllr Palmer should not have chaired the Employees' Committee and was in a position of conflict (as potential Deputy Mayor), and did not declare his interest. Whether he did or not does not seem to me to much matter. Given that the focus was on what the full Council decided, both quite properly absented themselves from the debate and vote of the 4 August.
- As to Ground 4 (failure to consider relevant material) whilst Mr Jones rightly accepted that this court is not concerned with the question whether Leicester City Council is better run with or without a Chief Executive and that that was a matter for the Council, this ground seemed to detract somewhat from that proposition. Nevertheless it has, in my judgment, no real substance. The claimant had every opportunity to put her case to the Council and did so both herself and through her solicitors on a number of occasions. It seems to me that Mr Coppel is right on this fourth ground; there is every indication that the Council gave careful and detailed consideration to the policy question: should the role of Chief Executive be retained or not and the claimant's points in that regard (as well as her personal position) were fully and carefully considered. In so far as article 6 was engaged at all, the claimant in my judgment was given a very fair hearing overall.
- As to Ground 5 (irrationality and the disclosure of the claimant's personal medical condition to the media) I entirely accept that the disclosure of her personal medical condition to the media should not have happened (as the defendant accepted). Mr Jones however argues that this, together with other the factors, rendered the entire process and procedure involving her redundancy and dismissal unfair and amounted to a serious breach of article 8. Even considered with or without his other factors or grounds, in my judgment this is simply overstating the case. Mr Coppel argues that the claimant has a right of recourse under the Data Protection Act 1998. That is as may be, I prefer to express no view on that point, but in my judgment the disclosure to the media and thereby to the public whilst it should not have happened does not vitiate and has not vitiated the entire process. I am confident that her employers (the Council) would have been entitled to know why she was off work for such extended periods. There is even an arguable case, in my own tentative view, that as the Chief Executive of a public authority there was a legitimate interest in knowing, at least in general terms, that she was ill, if not the details. Mr Jones also sought to complain of the way his client's complaint about these revelations to the media were dealt with (or not dealt with). He complained of bad faith or bad practice. In my judgment all this served to do was to confuse the real issue – was the claimant's dismissal lawful – with a number of peripheral issues. In my judgment therefore this Ground also fails.
Alternative Remedies
- I am concerned in this case, as I have said, with public law remedies, not private law. In any event this is a case where the claimant has alternative remedies: the Employment Tribunal and is still well able to pursue her stayed application. Nothing I have said in this judgment should affect the substantive merits of that application whatever they are (since I have seen none of the papers presented to the Tribunal).
- The post the claimant claims to have has lost is that of Chief Executive and "Head of Paid Service". In truth she was never "Head of Paid Service" (capital letters), she was the Chief Executive, but was also, as an officer of the defendant, designated as head of their paid service as explained above. If she was dismissed as an officer of the local authority she inevitably lost her designated status. None of this however prevents her continuing with her reference to the Employment Tribunal in respect of her loss of employment.
Conclusion
- It follows that in my judgment, despite the infelicitous wording of the letter of 8 July, there has been no material irregularity, unlawfulness, unfairness or irrationality in the decision to dismiss her as Chief Executive and as a person who was the designated head of paid service. The claimant had a full opportunity to make representations to the Council which considered and debated them carefully and at length.
- I note that the reasons expressed by HHJ Langan QC for refusing permission on paper were expressed as follows:
"(1) The letter of 8 July 2011 was an ill-judged one, in that certain parts of the letter can be read as demonstrating that the end of the road with regard to [the claimant's] employment would inevitably be reached on 10 November 2011. The true position was, however, that only the full Council could dismiss her, and so the focus has to [be] on the meeting held on 4 August.
(2) With regard to that meeting,
(i) [The claimant] put her case to the Council in writing and at length;
(ii) Sir Peter Soulsby and Mr Rory Palmer absented themselves;
(iii) The question of dismissal was debated for many hours.
It seems to me that an attack on the procedure followed is not arguable with any prospect of success.
(3) If [the claimant] is entitled to reinstatement and/or damages, those remedies are available in the Employment Tribunal proceedings."
- Having had the advantage of fuller argument and debate, I nevertheless in substance respectfully agree, albeit I have expressed my reasons far less succinctly. It is nevertheless an apt summary of my reasons for dismissing the application.
