Tommy Sheridan loses challenge to council’s handling of applications for social worker position

About this case:

• Citation:
  [2025] CSOH 54
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Young

Tommy Sheridan, who served as an MSP from 1999 to 2007 but was imprisoned for perjury following a conviction in the High Court in December 2010, argued that the decision was unlawful and fell to be reduced on the grounds of irrationality and inadequate reasoning. The respondent took the view that the petition was incompetent and outside of the jurisdiction of the court.

The petition was considered by Lord Young in the Outer House of the Court of Session. M Dailly, solicitor advocate, appeared for the petitioner and P Reid KC and D Blair, advocate, appeared for the respondent.

Usurped the role

Following his release from custody, the petitioner completed a law degree and the diploma in professional legal practice. In 2022 he commenced a postgraduate social work qualification and completed the academic and work placement parts of that course. As a consequence of his conviction, a fitness to practise hearing took place in February 2023, which concluded that it was not necessary to make a finding of current impairment in the public interest and granted his application for registration with the Scottish Social Services Council.

In February 2024, the petitioner responded to a generic advertisement for social workers issued by the respondent. He was unsuccessful at the interview stage but informed that he should not be discouraged from applying again in the future. Following two further rejections, he applied for a specific post within the criminal justice field of social work. In a letter dated 20 August 2024, the respondent informed him that any future application to them would not be progressed in light of his conviction.

For the petitioner it was submitted that it was ultimately the SSSC’s responsibility to determine whether a person was an appropriate person to work as a social worker in Scotland. The respondent’s decision effectively usurped the role of the SSC by telling him he was not viewed as a fit and proper person to work for them, despite the detailed consideration given to his conviction by the SSSC. The letter of 20 August was effectively a ban on the petitioner working in social work in Glasgow.

As a preliminary argument, the respondent submitted that the petition was incompetent. Decisions by a local authority on whether to invite an applicant for interview or offer them a contract of employment did not fall within the scope of the supervisory jurisdiction. That position had been constant since West v Secretary of State for Scotland (1992) and affirmed recently by the Inner House in Redcroft Care Homes Ltd, Petitioner (2024).

In the event that the petition was competent, the respondent submitted that the fact that the petitioner met the condition precedent for seeking employment as a social worker did not confer on him any right to be considered for a particular post. In respect of the criminal justice post, the respondent’s concern in employing someone with a perjury conviction to prepare social work reports for the courts was an understandable concern.

An employment situation

In his decision, Lord Young began with the issue of competence: “There is a clear line of authority dating from West v Secretary of State for Scotland and culminating in Redcroft Care Homes Petr, that a decision made within a contractual relationship such as a contract of employment will rarely be amenable to judicial review. In such a situation, the parties’ obligations to each other are determined by the terms of their contract and are enforced in the ordinary way. If the express, and any implied, contractual terms are not adequate to govern the particular issue which has arisen between the contracting parties, it is not for the supervisory jurisdiction to step in and superimpose public law concepts into the parties’ relationship.”

He continued: “I agree with the submission for the respondent that it makes no difference that, in this case, the petitioner’s complaint relates to a refusal by the respondent to consider entering into a contract of employment. The context in which the respondent sent these letters to the petitioner was whether the petitioner was viewed as a suitable candidate for employment as a social worker. The relevant statutory power is the power to employ staff. This was an employment situation where parties are free to decide whether to enter into a contract or not.”

Holding that this was sufficient to dismiss the petition, Lord Young concluded: “[The petitioner] enjoys no private law right to be considered for employment by the respondent, so he is seeking to fashion a right to be considered for social work jobs through the application of broad public law concepts. If the petitioner’s argument was accepted, then it would follow that every applicant for a public sector job in Scotland could potentially challenge the job application process using the judicial review procedure.”

He nonetheless provided brief views on the merits of the case: “The suggestion at the hearing before me that the respondent was usurping the role of the SSSC in determining who should be a social worker is, in my view, emotive but wrong. The petitioner is on the appropriate register and the respondent’s decision does not affect that. He remains free to work as a social worker for any public or private employer willing to engage him. All the respondent has done is indicate to the petitioner that they are most unlikely to engage him as a social worker.”

The petition was accordingly dismissed as incompetent.