What were the basic facts?
Ms Montgomery was employed as a social worker by the local authority from May 1983 to 2004. In April 2001, she was seconded to the local NHS trust, but was suspended in October 2003, following a number of complaints.
In May 2004, she became an employee of the trust as part of a TUPE transfer. It therefore took over the investigation into the allegations against her, and reached a compromise agreement with her in October 2004.
Without admitting any liability on its part, the trust agreed to pay her £15,000 in full and final settlement of all claims she might have against them as well as the county council.
The trust also agreed to provide her with a reference that said, among other things, that: “In more than 21 years in Hertfordshire, Claire has enjoyed an excellent attendance record and unblemished work record.”
What happened next?
On 17 January 2005, Ms Montgomery secured a job as a temporary senior lecturer at the University of Hertfordshire, following a reference supplied by the trust in which it said she was capable of doing the job, but admitted it would not re-employ her.
The job included organising placements of trainee social workers with the trust and the local authority, among others. She therefore needed to make contact with members of staff of both her previous employers.
Unfortunately, the trust refused her access to their premises, which meant she could not organise the placements. The local authority subsequently also refused her access to their premises in March. The trust withdrew its embargo in April, but the county council persisted.
The university then told Ms Montgomery in May that she would lose her job unless the ban was withdrawn. She brought judicial review proceedings against the local authority, arguing that it was making it impossible for her to do her job. It argued that it was acting in the interests of staff who had complained about her in the past.
What did the High Court decide?
The High Court decided that the council “failed manifestly and flagrantly to comply with the fundamental principles of fairness. They had given no notice of their action, they did not explain the grounds of their action, they have not explained the basis of future fears based upon the past complaints and they have not given the claimant any opportunity before the decision to ban her…. to respond.”
It said that, although local authorities can sometimes be regarded as private landowners who can exclude whoever they want from their land, those rights have to be balanced with their public law responsibilities.
In this case, the judge said that the council should have thought very carefully before taking action because it was based on an historic grievance. That grievance had been resolved with the compromise agreement, and Ms Montgomery had had no reason to believe that future contact would be prevented because of past events.
The trust had not seen fit to ban her, after getting legal advice, despite the fact that it employed many of those cited in the council’s evidence. Although some members of staff had felt intimidated by her as a manager, the court said they were not complaints that required them to have protection from her.
However, it said that, if the council decided (for reasons best known to them) that they did need to protect their staff from Ms Montgomery, they could still do so but only if they followed the proper procedure.
It concluded that the scope of the ban and the lack of evidence requiring a ban “of this severity” must result in the council’s decision being quashed.
Comment
Although Ms Montgomery succeeded in her claim, the facts of this case were so unusual that other claimants cannot assume that they can rely on judicial review proceedings except in equally exceptional circumstances.