Employee wins case after being suspended

The court of appeal has recently examined the process of
suspension of local authority employees where there is an
investigation about harm to a child in residential care. The
decision is reported as Gogay v Hertfordshire County Council [2001]
1 FLR 280 and the judgement is given by Lady Justice Hale, who was
of course one of the architects of the Children Act 1989.

A 13-year-old girl (who we shall call Ethel) with learning and
communication difficulties was accommodated under section 20 of the
act because the parents were unable to manage her. She was placed
in a small children’s home with her brother, who had similar
difficulties, in September 1993. They continued to have frequent
contact with their parents. By the end of 1994 Ethel’s
behaviour became very disturbed. The father suggested she might be
being abused by a member of staff. In early 1995 Ethel suggested
explicitly that she had been sexually abused by her father. In
March 1995 he admitted abusing her between February and September
1994 and was later sentenced to six years imprisonment.

At the end of December 1994 a new member of staff (Julie) began
to work at the home. She had no training and no experience of
working with children. Late in 1995 Ethel developed an obsession
with Julie, behaving in a sexually provocative manner towards her
to the knowledge of the local authority. They decided to increase
the contact between Julie and Ethel in the hope of breaking the
obsession. In March 1996 Ethel made some confusing comments about
Julie’s behaviour towards her. Julie asked not to be left
alone with Ethel and guidelines were drawn up that no member of
staff should be left alone with her. It was also recorded:
‘[Ethel] appears to assimilate liking a person and them
liking her to them wanting to abuse her. She has made several
statements to this effect, ie you like me, you won’t make me
sick?’

Ethel had been having therapy since April 1995 and in the course
of treatment made allegations about her mother, as a result of
which care proceedings were initiated in May 1996. In the course of
her research on the social services files, the guardian ad litem
noted the comments that had been made about Julie and suggested
that if the authority was taking the allegations about the mother
seriously they should also look into what Ethel was saying about
Julie.

The local authority reviewed the position and decided to carry
out an investigation under section 47.

It was considered to be in their respective interests that Julie
should not work with Ethel during the investigation. The authority
decided that there was no alternative to suspending Julie pending
the outcome of the investigation. Six weeks later as a result of
the investigation it was decided that there was no abuse by any
member of staff and Julie was reinstated. Julie subsequently
suffered from clinical depression and the evidence was that a
substantial and significant cause was her suspension. She sued for
loss of earnings and damages for personal injury arising from a
breach.

In her judgement Lady Justice Hale made it very clear that she
in no way wished to inhibit the reasonable inquiries that an
authority had a duty to make where there was information to suggest
that a child might be at risk of harm. She emphasised the
distinction to be drawn between the process of investigating the
risk of harm and the process of dealing with a member of staff who
might be implicated. ‘It is a gross over-simplification to
conclude that because some form of investigation is taking place in
relation to the child the employee must inevitably be
suspended.’ The staff issue is whether it is appropriate for
the staff member to be transferred or have a period of leave or
whether there should be disciplinary measures. If the authority
suspend without justification there is a breach of the implied term
of confidence and trust. Julie was successful in her claim for
damages.

There is a much wider lesson to be learnt from this case. The
legacy of numerous enquiries and reports on abuse in children’s
homes, when implemented at local level, can be overzealous reaction
to difficulties which homes will inevitably experience. This can be
particularly true in private and voluntary homes, where local
authorities can impose unrealistic standards which they would never
achieve in their own establishments, always assuming of course that
they run them.

Registration and inspection units, quality assurance sections
and managers need to be wary in the light of this judgement. They
cannot jump to conclusions. Authorities need to remember that while
the overriding interest is the welfare of children, decisions need
to be based on evidence rather than prejudice.

Richard White

White and Sherwin Solicitors, Croydon