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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Petition Thomas Sheridan for Judicial Review (Court of Session) [2025] CSOH 54 (26 June 2025)
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Cite as: [2025] CSOH 54

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OUTER HOUSE, COURT OF SESSION
[2025] CSOH 54
P1072/24
OPINION OF LORD YOUNG
in Petition of
THOMAS SHERIDAN
Petitioner
for
Judicial Review of a decision of the respondent to permanently exclude the petitioner from
being employed as a social worker in Glasgow
by
GLASGOW CITY COUNCIL
Respondent
Petitioner: Dailly, (sol adv); Drummond Miller LLP
Respondent: P Reid KC, D Blair; Harper Macleod LLP
26 June 2025
Issue
[1]
This is a judicial review in which the petitioner contends that the respondent acted
unlawfully when it informed him in two letters that he would not be offered employment
as a social worker by the respondent. The petitioner seeks a declarator that the respondent's
decision was unlawful and reduction of that decision. The respondent in this petition is
Glasgow City Council but, as will be obvious from some of the correspondence quoted in
the opinion, Glasgow City Council arrange for a number of social services functions to be
2
carried out through the Glasgow City Health and Social Care Partnership. Nothing turns
on this distinction and references to the respondent should be understood to encompass
both Glasgow City Council and the Social Care Partnership.
Background
[2]
The petitioner is a former member of the Scottish Parliament. He has featured
prominently in national and local politics over the last three decades. In December 2010,
the petitioner was found guilty at the High Court of having committed perjury during a
defamation action which he had brought against a national newspaper. He was sentenced
to 3 years' imprisonment. Following his release from custody, the petitioner completed a
law degree and the post-graduate diploma in legal practice. In 2022, he commenced a
post-graduate qualification in social work and completed the academic and work placement
parts of that course. A number of the petitioner's family have worked in the field of social
work.
[3]
Social work is a regulated profession and only appropriately qualified and registered
persons can hold themselves out as social workers. The petitioner required to be registered
with the Scottish Social Services Council ("SSSC"). As a consequence of his conviction for
perjury, a fitness to practise hearing took place on 20-22 February 2023. After hearing
evidence from a number of witnesses, the fitness to practise panel concluded:
"79. The Panel considered whether there should be a finding of current
impairment in the public interest. The Panel has concluded, that taking into
account all the circumstances, that it is not necessary to make such a finding.
The Panel took into account that you are of a mature age, the conviction is now
12 years old, you have spent a considerable amount of your adult life in public
service including eight years as an MSP, you have a distinguished academic
record, you have described your learning from your time in prison, you have
shown a degree of insight into the seriousness of the conviction, there is no
3
evidence of any other dishonest criminal behaviour and the circumstances of
your conviction were unique.
83. Having confirmed there are no conditions required on the Part of the
Register for Students, the application for Registration is accordingly granted."
[4]
The petitioner responded to a generic advertisement for social workers issued by
the respondent in February 2024. He was invited for a formal interview which took place
on 22 March 2024. He was subsequently informed on 29 July 2024 that he had been
unsuccessful but that he should not be discouraged from applying again in the future. In
April and May 2024, he made applications for particular posts advertised by the respondent
but was not invited for interview. On 15 July 2024, he applied for a specific post within the
criminal justice field of social work.
[5]
On 20 August 2024, the respondent wrote to the petitioner with reference to his
application for employment as a social worker in criminal justice. The letter was in the
following terms:
"Thank you for your interest in joining Glasgow City HSCP and your recent
application for the above vacancy. I'm sorry to confirm that after careful
consideration I have decided not to progress your application further.
During a previous selection process for the role of Social Worker you disclosed
and referred to your highly publicised criminal conviction and prison sentence
for perjury, which I have considered in assessing your suitability for employment.
I have taken the decision that to employ you would present an unacceptable level of
risk to Glasgow City HSCP and the Council. I have decided that your application to
work with us as a social worker, or any future application, should not be progressed.
I understand you will be disappointed by this decision but I hope this clarifies the
position of Glasgow City HSCP and the Council and wish you well in future."
[6]
The petitioner subsequently applied for a further social work job (Youth
Court GLA12823) advertised by the respondent. By letter dated 11 December 2024, the
4
respondent advised the petitioner that his application would not be progressed further.
The letter stated inter alia:
"You are welcome to make future applications. Any such applications will be
considered. However, the role you had applied for and other similar roles that
might be advertised involve, amongst other things, the preparing of reports to
use in courts and other legal or statutory forms. That was also true in respect
of the Criminal Justice Social Work role for which you applied earlier this year.
.......Absent a material change in circumstances, the fact of your previous conviction
will likely lead to future applications not resulting in an offer of employment. Out
of fairness to you, it was felt appropriate to make that clear."
Submission for the petitioner
[7]
On behalf of the petitioner, it was submitted that the respondent's decision was
unlawful and fell to be reduced on three distinct grounds. In the first place, the decision to
exclude the petitioner from being considered for social work jobs with the respondent was
irrational. In the second place, the decision was unlawful due to procedural impropriety
including the failure to give adequate reasons for the decision. In the third place, the
respondent's decision involved an unlawful fettering of its discretion.
[8]
The statutory background to this petition includes the Regulation of Care (Scotland)
Act 2001 ("the 2001 Act"). Section 43 of the 2001 Act constituted the SSSC to exercise various
functions under the Act including overseeing the education, training, conduct and practice
of social service workers. A social worker is a particular type of social service worker
identified by reference to their professional qualification and entitlement to be registered
as a social worker, (section 77). The title of social worker is a protected term and it is a
criminal offence for a person, with intent to deceive, to take or use that title or purport to
act as a social worker while not registered on the appropriate register, (section 52). A person
applies to the SSSC for registration as a social worker under section 45 and the SSSC may
grant the application unconditionally or with conditions, or may refuse it, (section 46).
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Combined Fitness to Practise Rules 2017 have been issued which define the concepts of
"fitness to practise" and "impairment" to be applied when considering an application
for registration. The 2017 Rules also permit the SSSC to form Fitness to Practise Panels
to consider and determine applications for registration.
[9]
The respondent is empowered by the Local Government (Scotland) Act 1973,
section 64, to appoint such staff as it considers necessary for the proper discharge of its
statutory functions. It also has a subsidiary power under section 69 of the same Act to
do such other things which assist in the discharge of any of his statutory functions.
[10]
A broad theme of the petitioner's challenge is that it is for the SSSC to determine
whether an individual is an appropriate person to work in social work in Scotland.
Parliament has set up the SSSC within a detailed legal framework to assess the suitability
of an individual to practise as a social worker. The respondent's decision usurps the role of
the SSSC by effectively telling the petitioner that he is not viewed as a fit and proper person
to work as a social worker for the respondent.
[11]
It was submitted that the letter of 20 August 2024 was an effective ban on the
petitioner working in social work in Glasgow. The subsequent letter dated 11 December
2024, demonstrated a change in tone insofar as it purported to welcome further applications,
but the final paragraph undermined the earlier paragraphs. The only change in
circumstances which the petitioner envisages might potentially be viewed as material by
the respondent would be if the original conviction was quashed. While the petitioner has
attempted via the Scottish Criminal Cases Review Commission to challenge his conviction,
such a process is far from easy or quick.
[12]
In relation to the irrationality argument, I was referred to Council of Civil Service
Unions & Others v Minister for the Civil Service [1985] 1 AC 374 per Lord Diplock
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at p410F-411A. It was argued that the petitioner had been assessed as fit to practise as a
social worker by the SSSC after a panel hearing. That panel hearing had involved a detailed
consideration of the perjury conviction and its relevance to his fitness to practise. He had
successfully worked on placement in social work departments operated by other local
authorities. He had satisfied all of the disclosure requirements under the Protection of
Vulnerable Groups (Scotland) Act 2007. He accepted and acknowledged that his conviction
required to be disclosed to potential employers under the Rehabilitation of Offenders
Act 1974 (Exclusions and Exceptions) (Scotland) Order 2013/50, and he had fully complied
with those requirements. In these circumstances, it was irrational for the respondent to
determine that the petitioner could not be considered for employment as a social worker
in Glasgow. The respondent has no basis for determining that the petitioner is not fit to
practise as a social worker.
[13]
On the second ground of challenge, the respondent's letters do not provide adequate
and intelligible reasons for its decision. These letters failed to provide adequate reasoning
for why the respondent considered it appropriate to effectively bar the petitioner from
employment as a social worker in Glasgow. Reference was made to United Co-operative Ltd v
National Appeal Panel for Entry to the Pharmaceutical Lists 2007 SLT 831 at p842; South Bucks
District Council v Porter (No 2) [2004] 1 WLR 1953 at paragraph 36; and R v Secretary of State
for the Home Department ex parte Doody [1994] 1 AC 531 at p560, for various well known dicta
on the adequacy of reasons in the field of administrative decisions. It was submitted that the
letter of 20 August 2024 did not explain what was meant by the "unacceptable level of risk"
which the petitioner presented to the respondent given that his registration indicated that
there was no such risk.
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[14]
In relation to the third ground of challenge, it was contended that the respondent
had unlawfully fettered its discretion in relation to the petitioner's ability to seek
employment. The respondent required to recruit employees in a fair and reasonable manner
designed to engage the most suitable candidate for the particular post. Reference was made
to the respondent's policy statement on recruitment and selection policy. This involved
exercising a statutory discretion during the appointment process. By imposing what was, in
effect, a blanket ban on employing the petitioner, the respondent had fettered its discretion.
Reference was made to British Oxygen Co Ltd v Minister of Technology [1971] AC 610,
Lord Reid at p625.
[15]
At the end of his submissions, the solicitor-advocate for the petitioner turned to the
issue of the competency of these proceedings raised by the respondent in its answers. It
was submitted that the petitioner's challenge should not be viewed as an employment law
challenge. It did not relate to a dispute about a specific job. As the respondent had adopted
a wide and unusual policy of blocking the petitioner from being engaged as a social worker,
that policy decision, which involved an exercise of statutory powers, was amenable
to judicial review. The decision in Redcroft Care Homes Ltd Petr [2024] CSIH 34;
[2023] CSOH 95 relied upon by the respondent could be distinguished as parties in that dispute
were in a contractual relationship. The remedy for the petitioner in Redcroft Care Homes
Ltd Petr would be through an ordinary action based on contract. The petitioner was in
a different position. There was no contractual relationship with the respondent. The
respondent was using its statutory powers under the Local Government (Scotland) Act 1973
to adopt a policy excluding the petitioner from employment. This was a draconian policy
which covered all social work roles. The exclusion was not, for example, limited to a specific
role such as preparing reports within a criminal justice appointment which, it was accepted,
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might raise a legitimate issue for the respondent. This was a blanket policy which usurped
the role of the SSSC in deciding whether the petitioner was a fit and proper person to work
in social work.
Submission for the respondent
[16]
The preliminary argument advanced on behalf of the respondent concerned the
competency of the petition. It was submitted that a decision by a local authority whether
to invite an applicant for interview or offer them a contract of employment did not fall
within the scope of the court's supervisory jurisdiction. The petition for judicial review
was therefore incompetent and the court should sustain the respondent's first plea-in-law
and dismiss the petition.
[17]
The scope of the supervisory jurisdiction had been set out by the Lord President
(Hope) in West v Secretary of State for Scotland 1992 SC 385 at p413. West was a dispute about
reimbursement of expenses after an employee was transferred to another place of work by
his public sector employer. The supervisory jurisdiction of the Court of Session seeks to
ensure that a person or body entrusted with a jurisdiction, power or authority does not
exceed or abuse that jurisdiction, power or authority. Importantly, senior counsel
submitted, it was expressly stated in West that "Contractual rights and obligations, such as
those between employer and employee, are not as such amenable to judicial review." The
position since West had been consistent. Reference was made to Lord Clark's discussion
of a series of cases in which decisions made by a contracting party in relation to rights and
obligations under contract were held not to be amenable to judicial review, (Abundance
Investments Ltd v Scottish Ministers [2020] CSOH 12 at paras [43]-[48]). The Inner House
in Redcroft Care Homes Ltd Petr 2024 CSIH 34 at paras [30]-[31] & [34] reaffirmed the line of
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authority that the supervisory jurisdiction is not normally engaged where the dispute relates
to a disagreement between contracting parties regarding the operation of their agreement.
The petitioner's dispute with the respondent relates to the respondent's statement that they
do not propose to engage him as a social worker. This is an employment situation between
an employer and a potential future employee. The fact that the respondent acts under a
statutory power when it informed the petitioner of its view is unimportant. As a public
authority created by statute, the respondent can only ever act under a statutory power. It
did not matter that this dispute arose at the stage of the respondent considering whether to
enter into a contract as opposed to when a contract was already in place.
[18]
Even if the petition was competent, there were a number of fundamental problems
with it. As a matter of private law, employers have a broad discretion in relation to
recruitment decisions. Provided that an employer abides by the statutory requirements of
the Equality Act 2010 and any similar legislation, the employer has a wide discretion as to
whom to interview and whom to employ. There is no legal duty to provide reasons to
any unsuccessful applicant. A factor which an employer is entitled to take into account
when deciding whether to employ a particular individual is reputational risk to the
employer. A public sector employer such as the respondent is in precisely the same
situation as a private sector employer. It can decline to interview a qualified applicant
for any job if it so wishes provided it is not contravening any discrimination legislation.
[19]
The petitioner's irrationality submission based on the regulatory scheme set up
by the 2001 Act takes him nowhere. The regulatory scheme sets a condition precedent
for any applicant who seeks employment in Scotland as a social worker. The fact that
the petitioner can meet that condition precedent confers on him no right to be considered
for any particular post by any potential employer. The respondent is at liberty to insist
10
on additional criteria for the social workers which it considers for potential employment.
Examples were given of an employer which imposes a condition that it will only interview
candidates with a first class university degree, or an employer which declines to interview
individuals who have had adverse disciplinary findings against them but whose registration
has been continued. The fact that the Rehabilitation of Offenders provisions require an
individual engaged in social work to disclose a previous conviction if asked demonstrates
that Parliament viewed the existence of a previous conviction as a potentially relevant factor
to an employer. The role which the petitioner was applying for in the summer of 2024 was
as a criminal justice social worker. Such a role would involve preparing court reports in
relation to convicted persons. The respondent's concern in relation to employing an
individual with a High Court conviction for perjury to prepare such reports is
understandable and could never be described as an irrational concern.
[20]
The respondent's letters gave him adequate reasons for the respondent's decision.
The letters were brief but provided the petitioner with confirmation that the respondent
viewed the existence of his previous conviction as a significant bar to his employment. The
petitioner has never sought clarification from the respondent as to what the letters mean
which supports the respondent's contention that he has been provided with an adequate
explanation for the decision.
[21]
The respondent's letters did not fetter their discretion. Properly read, these letters
did not amount to a blanket ban. The second letter made clear that future applications
would be considered if submitted. It made clear what was implicit in the earlier letter that
if there was a material change in circumstances, then a future application by the petitioner
would have improved prospects of success. The respondent's decision was one based on the
petitioner's individual circumstances.
11
Discussion
[22]
The preliminary issue for the court is whether the petition is competent. A petition
for judicial review seeks to invoke the supervisory jurisdiction of the Court of Session. The
supervisory jurisdiction does not extend over all decisions made by a public body in the
course of fulfilling its statutory duties. The supervisory jurisdiction is invoked where the
decision of a respondent is made under a legally circumscribed jurisdiction, power or
authority. The supervisory jurisdiction seeks to ensure that a respondent makes lawful
decisions in accordance with the limits of its jurisdiction, power or authority. It is important
to identify the source and nature of the power which a respondent is exercising in relation
to any disputed decision. In this case, the petitioner's submission identified section 64 of
the Local Government (Scotland) Act 1973 as the statutory basis for the disputed decision.
While section 64 does limit the respondent to employing staff considered necessary for the
proper discharge of the council's functions, it does not limit or define the respondent's
power to engage staff in any other way.
[23]
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.
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[24]
The petitioner sought to distinguish that line of authority on the basis that such
cases involved parties in a contractual relationship whereas this case concerned a policy
adopted by the respondent prior to any contractual relationship. I am not persuaded by
this argument. 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. Although the petitioners in cases such as West v Secretary of Scotland and
Redcroft Care Homes v Edinburgh City Council had existing contracts with the respective
respondents, it must be noted that those contracts did not provide those petitioners with the
remedies which they wished. The reason why the petitioners in those cases raised judicial
review proceedings was an attempt to secure an improved position by arguing that public
law concepts were applicable in the parties' relationship. The petitioner in this case is in
essentially the same position. He 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.
[25]
I find that the petition is incompetent for the reasons advanced by the respondent
and it falls to be dismissed.
[26]
I shall briefly provide my views on the merits of the petition itself. The test for
demonstrating that a decision is irrational is a high one for very good reason. The vast
13
majority of decisions taken by public bodies whether good, bad or indifferent, should not
be second guessed by judges. But there may be rare occasions where, to adopt the words
of Lord Diplock, the decision of the public body is so deficient in logic that no sensible
person could have reached it. In those exceptional situations, the court may step in - not
to remake the decision itself - but to require the decision maker to apply its mind properly
to the issue. I do not consider that the respondent's concern about employing the petitioner
comes close to being viewed as irrational. His registration with the SSSC simply confirms
that he meets the minimum statutory requirement for employment. It does not prevent
an employer from applying its own additional criteria before interviewing or offering
employment. The existence of a conviction for perjury is likely to be of some relevance
to some employers considering whether to employ an individual as a social worker. If a
conviction was of no possible relevance once an individual was registered with the SSSC
then it would be expected that the Rehabilitation of Offenders Act 1974 would not have
excluded the social work profession. This seems to me to be a situation in which different
views can reasonably be held on the relevance of the petitioner's conviction and sentence.
For some, the petitioner's past experiences with the criminal justice system may be seen as
giving him greater insight which may of huge benefit in his work as a social worker. But
the fact that the respondent does not view it as a positive factor cannot be described as
irrational. 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.
14
[27]
In relation to the reasons given for their decision, I expressed the view during the
hearing that the letters were far from clear. What was unclear to me was what the
respondent meant by the phrase "you would present an unacceptable level of risk to
Glasgow City HSCP and the Council". I also struggled to square the sentence in the earlier
letter that "I have decided that.....any future application should not be progressed" with
the passage in the subsequent letter that "You are welcome to make future applications.
Any such applications will be considered." However, a requirement to give adequate and
intelligible reasons does not impose a universal standard. What is required will depend on
the context in which the decision is made including any statutory procedure which must
be followed. The reasons can be brief but should convey to the other party why a decision
was taken. In the present case, the respondent made a unilateral decision to write to the
petitioner to explain how future applications would likely be viewed. They did not need to.
Although the letters lack some clarity, they did convey to the petitioner that his previous
conviction was considered by the respondent to be a significant bar to future employment
with them. He was told what the respondent's likely response would be to future
applications. That seems to me to be the essential information which the petitioner needed.
[28]
The petitioner's argument in relation to the fettering of discretion is misconceived.
Fettering of discretion in a public law context occurs where a decision maker exercising a
discretion adopts and applies a rigid policy without being open to considering exceptions to
that policy. It is difficult to view the statutory power to engage staff as conferring a specific
and defined discretion upon the respondent. But even if the terms of the August 2024 letter
fall to be read as advising that any future application will not be progressed, the subsequent
letter in December 2024 indicates that his subsequent application for the Youth Court role
was considered by the respondent and that any further applications would also be
15
considered. A fair reading of the correspondence is that the respondent considers it unlikely
that it will offer employment to the petitioner, but it will consider any further applications
which he makes. The respondent identifies that a material change in circumstances would
improve the prospects of employment. The respondent has not adopted a fixed and
absolute policy against considering the merits of any further job applications from the
petitioner.
Disposal
[29]
I shall sustain the first plea-in-law for the respondent and dismiss the petition as
incompetent. If parties are unable to reach agreement on expenses, they should ask for the
matter to be put out by order so that I can be addressed on that issue.
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