Montgomery, R (on the application of) v Hertfordshire County Council

NICHOLAS BLAKE QC: This is an application for Judicial Review in which the claimant, Claire Montgomery, seeks relief to quash a decision of the defendant, Hertford County Council, that was first taken in March, repromulgated in May and maintained in June 2005, to ban her from all of its premises.

The dispute between the parties arises in this way: the claimant was once employed with the defendant from May 1983 until 2004. She was employed in various capacities as a social worker. I understand when she left the employment of the defendants she held the post of Deputy Community Mental Health Team Manager.

A little further background is required. In April 2001 the Hertfordshire Primary National Health Service Trust was created and it was decided that the claimant, as then team manager of the Mental Health Team, should be seconded to the NHS trust, although at that stage still employed by the defendants.

Certainly by 2003 there had been serious concerns expressed by the defendant, undermining their confidence, I think, in the claimant's continuing employment as a manager of the Mental Health Team. However, I understand that no formal disciplinary proceedings had been taken against her before the secondment and, although I will have to deal in more detail with the events of 2003, it seems that the claimant was suspended from her post in October 2003 as a formal investigation into two separate grievances with what was in issue. The first of those grievances was by a secretary working at the Trust who complained of being spoken to in the previous year, November of 2002, in an intimidating manner. That matter was investigated and other matters came to light.

The defendant in due course asked the matter to be investigated by independent consultants, who produced a report in August 2003 and, I think, a further report in July 2004. A flavour of the other complaints is summarised in that report at paragraphs 1.3 and the subparagraphs following. "Complaint 1:"

I return to the sequence of events. The claimant had been suspended from October 2003 whilst these investigations took place. As indicated, the report was not delivered finally until August 2004. In the meantime, an event happened which has significance in this case. In May 2004, the claimant's contract of employment was formally transferred to the Hertfordshire Partnership NHS Trust, pursuant to the Transfer of Undertakings Regulations 1981; that is to say that the claimant, as well as other members, I understand, of the defendant's staff, now had their employment transferred, so henceforth they were being employed by the Trust. This was not an arrangement made specially for the claimant but it was not an arrangement from which the claimant was excluded. There was some debate in the case today whether she could have been excluded but, in any event, she was not. That meant that the continuation of the disciplinary investigation into the claimant was undertaken by the Trust rather than the defendants.

It is common ground that Regulation 5(2) of the Transfer of Undertakings Relations:

To continue the matter, having been transferred to the Trust in May 2004 and having had the reports delivered in August 2004, matters did not reach the stage where a formal disciplinary sanction was taken against the claimant. Rather, as I understand it, following negotiations in which the claimant was represented by solicitors, in October 2004 a compromise agreement was reached.

The terms of that agreement were recorded in the document signed on 15th and 16th of November by the respective parties. The respective parties are of course the claimant on the one hand and the Trust on the other. In the light of the argument, it is important that I summarise the heads of the agreement:

Ms Baruah, for the defendant, has emphasised that her clients, although they were aware that there were settlement proceedings in the offering and although they in fact contributed to some of the monies that were being paid as mentioned in the agreement, they were unaware of the terms of the draft reference and would have probably been less than happy if they themselves had been asked to give a reference in those terms. It is reasonably clear from the submissions I have heard today that they would find it impossible because of the matters which they are investigating, and other information coming from their staff, as to difficulties they had of working with the claimant and the fact of a number of the people for which she had an intimidating manner.

However, those were the terms of the agreement. The matter goes further because, shortly before that agreement was finalised, the claimant sought, understandably, further future employment and the employment that she applied for was with the University of Hertfordshire as a temporary senior lecturer in social work. Now, she was subsequently successful in obtaining that post but, before she was successful, the University of Hertfordshire sent to her former previous employer their standard employment reference request. That was completed on 29th December 2004 by the Trust's head of personal services, Mr Butler.

That reference explains that the author of the report has known the claimant for four years because she was employed by the Trust as a social worker. It explained the period of employment and the reason for the cessation of employment as resignation. It gives information about the claimant's commitment to social work and delivery of services and says:

The job to which Ms Montgomery was appointed was a temporary senior lecturer in social work at the University's faculty of Health and Human Sciences. In that connection, her main responsibilities were to:

Pausing there, the present matter has come before the court because the court understands that part of the job description, part of the performance of the functions of the claimant under that job description, was to make placements of trainee social workers with social work agencies in the locality of the university so they could complete their practical training as a social worker. It has not been necessary to look up whether there was an legislative back-up for this practice of the vocational part of a social worker's training. All counsel were content to treat it as a fact that, in the past, Hertfordshire University has had good working relations with both the NHS Trust and the defendant county council, in respect of placement of Hertfordshire's trainee social worker students with both institutions, the Trust and the defendants, so the Hertfordshire students could get the practical experience that they clearly need in order to become qualified and competent social workers.

It was therefore part of this claimant's responsibilities, whilst employed for Hertfordshire, to make some contact with members of staff of the defendants or of the Trust in order to achieve placements and to get any feedback as to how the placement students were performing and any expressions of interest or concern so that the respective bodies, who would be managing the placements, would have feedback to the claimant at the university. Beyond that, the court does not have any further precise information as to what this function entailed. From the claimant's point of view, that is because she has never been able to perform these functions since her employment began in January 2005 because of the events which give rise to this application.

Those events are as follows: the claimant was appointed on 17th January 2005 to the post at the university. On 25th January 2005, the Trust informed the university that the claimant would not be allowed access to their premises for the purposes of her professional duties. There then followed representations that the claimant instructed her solicitors to make and the outcome was that on 24th March 2005 -- I understand within a week of the claimant's solicitors writing to the Trust -- the solicitors for the Trust wrote to the claimant's solicitors agreeing to rescind the embargo and apologising to the claimant for the stress and inconvenience it caused. On 4th April the Trust wrote to the university, informing them that the ban had been withdrawn.

So that was the attitude of the Trust. However, it seems that on 17th March 2005 the defendant county council also wrote to the university, informing them that the claimant was also not allowed on to their premises and to not have contact with their employees for the purpose of her professional duty. This was a letter sent to the university. It was not sent to the claimant and the claimant has said that she was not informed of it by the university at the time.

Following the withdrawal of the ban by the Trust, on the 12th May 2005, the defendant wrote again to the head of the school at the university saying they write:

On 8th June the claimant's solicitor wrote to the defendant county council, enclosing a draft claim form, a statement of facts and grounds and asking them to withdraw the ban or proceedings would commence. The defendants refused and maintained the ban, saying:

There have been a number of hearings. On 10th June 2005 Collins J refused interim relief because of the lateness of the papers and the shortage of time. On 14th June 2005 the matter came before Henriques J. He refused to grant interim relief on an ex parte basis but there were matters to be considered inter partes on 24th June. There were clearly substantial submissions made on that date. On 12th July 2005, McCombe J gave permission to the claimant to apply for Judicial Review and he granted interim relief. The interim relief that he granted was as follows: pending a substantive Judicial Review application, in line with the informal agreement previously reached between the parties on 23rd June 2005:

One point turns on that relief. In the course of his submissions today to me, Mr Toms points out that the defendants have filed no witness statements from members of their staff currently employed by them who are saying they would now not be able to communicate or work with the claimant in her new job. Clearly a number of the present staff of the defendants had been staff who had expressed critical views and concerns about the claimant to the defendants in 2002/2003 in the course of the investigation. But the fact of the matter is, as regards 2005, that there is no current witness statement. Ms Baruah in response says that the defendants understood the terms of the interim order that Hertfordshire County Council would take no proactive steps to notify their employees of that as possibly including the inability to contact their own staff to take witness statements from them. I must say, for myself, looking only at the terms of the order, I would not have interpreted the order so broadly and I do not find the exchange between counsel in front of Henriques J of any particular assistance to enlighten me as to the terms of the ban.

There is before the court, because the defendant sought it, a transcript of the hearing before Henriques J, in which Mr Toms was pressing for the need for some protection for his client as a result of a witness statement which he had received. Mr Toms says "if they are now taking proactive steps to tell staff not to work with our client, that is something about which I am totally unaware, that is a new development in this case". The court does not need to determine whether there was any such instruction or order, but it seems to have been fear of such activity that was the basis of the terms of the order subsequently made by McCombe J. In the result, the picture is that, although the claimant has been employed by the university since January of this year, as of today's date, 2nd September, she has not been on the defendants' premises nor has she had contact with any of their staff, other than in the incidental sense at the university premises, recognised as permissible by the terms of the order.

That then is the factual background to this dispute. The claimant says that, effectively, the defendants are making it impossible for her to perform her functions at the University of Hertfordshire. Indeed, it is common ground that, unless this ban is rescinded, she cannot continue her employment there because she would not be able to perform a significant or relevant part of her duties in terms of the placing of social worker students. The defendant says that it is acting only in the interests of its staff, who had complained in the past about the claimant and her behaviour and attitude when she had been deputy manager of the Mental Health Trust as indicated.

In her skeleton argument, Ms Baruah for the defendant has abstracted some quotations of various complaints that people made against her. It is fair to say that a number of these are complaints by people who are employed by the Health Trust. Ms Baruah makes the point that, nevertheless, if they are indicative of the kind of unreasonable conduct to which the claimant is allegedly capable, they are no worse for that. But looking at that summary of the complaints, they do indicate, from a period even going back before 2001, concerns about the claimant's ability to manage with confidence effectively; to get on with her colleagues constructively and to provide solutions, rather than any other conduct that would pose a direct threat to the integrity or health of members of staff of the defendants. Thus, looking at paragraph 15 of the skeleton argument, the complaint is summarised as "Social Services would be severely compromised/untenable if [the claimant] were to be involved." Complaint number two in that paragraph:

That is about the indication of the kind of effect which she can have on people. There are other matters which I am not going to lengthen this judgment by quoting but which I have read and noted, but in my judgment it is reasonable to conclude that the gravamen of all those complaints was about her personality, her attitude, her approach and whatever lack of skills that had led to unhappiness amongst staff.

Of course, the claimant is not any longer employed by the Trust or the defendant and is not going to be managing their social workers but will have to make some contact with some of the social worker staff of both the trust and the defendants in order to fill her functions for the placement of students. In my judgment those different functions are a highly material factor to be taken into consideration in evaluating what the defendant council did once they heard that the claimant was employed at the University of Hertfordshire. I accept that it is possible that she may have some contact with social workers who have previously complained about her. There is no evidence before the court to suggest that those people would refuse to have contact with her in her new function, the supervising placements, or that that would place impossible difficulties upon the defendants' staff. There is one example given in the claimant's witness statement, namely an individual person who she says has had been a complainant against her, but she had been able to deal with the claimant in relation to other matters but that is about the scale of the evidence.

So in my judgment the defendant is no doubt concerned about the historic complaints that members of its staff or members of its former staff who had been transferred to the Trust and possibly members of staff of the Trust, had in the past, 2002/2003, made about the claimant. However, the question before the court is: can what the defendant did, by way of the ban on the claimant approaching the staff or entering on their premises, be challenged in Judicial Review proceedings and, if so, is it liable to be quashed for one of the conventional reasons applicable for Judicial Review?

In the skeleton arguments it is suggested that this is really a private law function of the defendants and in terms of managing its own property and the defendant is perfectly entitled to exclude who it wills from its property for whatever reason. That of course would suggest it could be a bad reason or no reason at all. That is the prerogative of the private owner of the land. But by the time the case concluded, I think there had been some consensus that, in this class of case, the authorities indicate that there is an interface between private law rights of a public authority such as the defendant and public law responsibilities. In my judgment I have no doubt that the present is one such case.

Two authorities were relied upon by Mr Toms. Given the context, they have some bearing. The first was R v Broxtowe Borough Council ex parte Bradford [2000] IRLR 329. That was the case of the tennis coach who originally wanted employment with the borough council as a coach. It made inquiries of another council, Derbyshire County Council, and found that he had been suspected of improper conduct towards young girls. So the borough council not only refused him a job but imposed a ban upon him teaching in their public tennis courts and that, of course, interfered with the existing and further jobs that he had obtained providing coaching on those courts to private individuals. The judgment of the Court of Appeal, delivered by Lord Woolf MR, is a relevant reinstatement of the principles:

I take from that judgment that the local authority can not always be regarded simply as a private landowner, if they publicly own the land, because they are exercising a statutory discretion in controlling access to staff and premises. They must look broadly at the impact of any ban on the access required, the impact on the person who has been denied access and in particular the importance of ability to earn a living not being interfered with without proper reasons and without extending to the individual concerned the basic requirements of fairness.

There is another case cited, Wandsworth London Borough Council v A [2000] 1 WLR 1246, a decision of the Court of Appeal concerned with a school that wanted to ban a parent, who had allegedly been abusive to staff, from entering the school premises. In the course of the judgment Buxton LJ at page 1251D he said:

Later in that case, the court found assistance from the unreported decision in a case called R v Brent London Council, ex parte Assegai and I have taken on board the passage from that case as cited as approved by Court of Appeal between letters E and A on page 1255.

In my judgment, what those decisions make clear is that where there is an interface of public and private law then the minimum requirement on the council is to act fairly and act fairly means giving the person against whom the action contemplated is to be taken an effective opportunity, before the action is taken, to make representations upon the reasons for the action, the extent of the action, the impact upon him or her of the action, and taking those considerations into account before the council commit themselves to a decision which it may well be difficult to review thereafter.

In my judgment, in this case the defendant council was under a duty to act fairly before they took any measures in the purported protection of their staff to ban the claimant from entering their premises or contacting their staff in connection with their professional functions at the university. In my judgment the defendants knew and must have known that the measures that they adopted would substantially interfere with the claimant's discharge of her functions. There had been at least a practice of co-operation between the holder of the claimant's post or similar posts in order to facilitate placement discussions with students in the past and the claimant was being singled out for discriminatory treatment, being denied access to the staff and the premises because clearly of the past history between her and the county council. Nothing in this judgment or this conclusion indicates that the defendants are powerless to prevent abuse or threats or damage to health or other matters of legitimate concern in respect of their staff by someone who continues to behave in an irresponsible or inappropriate way. The short answer to this case is that the defendants 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 this decision was taken to respond to any such matters with effective representations. Of course, a fair hearing does not require an oral hearing. Nothing that falls from this judgment suggests that it does but it does require the fair opportunity to address the mind of the decision-maker as to what their concerns really are and for the decision-maker to fairly and promptly consider those representations and the background. In my judgment, and from the history that I have described and the correspondence, that has not been done. Ms Baruah said that, in the course of the correspondence after these proceedings were initiated, the council offered to reconsider their decision in the event that the claimant wanted to make representations. That does not cure the initial defect in any shape or form, not least because in my judgment it is obscure as to precisely why the action was necessary and what evidence it was based on and that would be the substance of the matters for which the claimant would be entitled to know. Equally, simply offering to reconsider does not in any way cure the fundamental failure of complying with the rules of natural justice and principles of fairness that has occurred in this case. In the classic parlance of public Law, the initial decision is a nullity. If it is a nullity then, apart from the hearing as such, the decision should not have had a legal impact.

The history of this case in my judgment suggests that particular care should have been taken by the defendant before taking action precisely because the action is based upon the historic grievance of the complaints or matters of concern expressed to the defendants when the claimant was in their employment rather than anything that has happened since the claimant has become the employee of the Trust or following her resignation from the Trust and employee of the university. It is a highly material consideration to which the defendant is bound to have regard that that grievance passed to the Trust to resolve and it was resolved in the way it was. The claimant has no reason to believe that future contact would be prevented by reason of past events. Second, it is the result that the Trust, who employs many of those cited in the defendants' evidence, has seen fit not to put any restraint upon the claimant's activities after legal advice and therefore the claimant has been free to perform professional functions with those employees. It is not alleged that that has led to problems or fresh issues which give rise to concerns for the protection of staff in 2005. I also consider that, although clearly some of the members of staff did feel intimidated by the claimant as a manager, the essence of the complaints now sought, very briefly summarised, is failings as a manager rather than a propensity to violent behaviour or matters of that sort that would be a personal characteristic which might well give gives rise to a need for protection.

In any event, if the defendant still decide, despite these comments, that there is something known to them which requires measures of the sort that are the subject of this application, they are not to be barred from taking appropriate measures if the appropriate procedure is followed, giving fair and effective opportunity to decide whatever such a measure is necessary. But the scope of this present ban, the unfair means by which it was reached, the absence of any evidence suggesting real problems that would require a ban of this severity and the interference with the claimant's ability to discharge the function of a lecturer at the university, all lead me to conclude that this decision must be quashed and I therefore grant the relief sought to the extent of quashing the decision for the reasons I have given in this judgment.

Are there any other matters that relate to the subject of argument? You do not need a formal declaration because I have the quashed the --

MR TOMS: None my Lord. I think, from my client's point of view, she can now carry out her functions unless some further proceedings or something arises. I do apply for my costs of this application.

MS BARUAH: My Lord, I could not oppose it.

NICHOLAS BLAKE QC: No, thank you. I award the claimant her costs for this application.

MR TOMS: We will find agreement but subject to us failing agreement, subject to detailed assessment?

NICHOLAS BLAKE QC: Yes.

MS BARUAH: My Lord, once the injunction is ended, the council can do as they wish.

NICHOLAS BLAKE QC: Yes.

MS BARUAH: I am grateful my Lord.

NICHOLAS BLAKE QC: So that is right. The interim relief comes to an end, it was pending the hearing of this action.

MR TOMS: My Lord, that is right.

MS BARUAH: I am grateful my Lord.

NICHOLAS BLAKE QC: I will direct, that since the interim relief is pending a substantive judicial review application, the interim relief of McCombe J's order of 12th July no longer continues to apply.