Dismissal following a second disciplinary procedure may be fair in exceptional circumstances

In the recent case of Christou and another-v-London Borough of Haringey the Court of Appeal rejected claims by the two social workers responsible for the safety of Baby P prior to his death in 2007 that they had been unfairly dismissed by Haringey Council in the aftermath of the criminal proceedings against Baby P’s abusers.  Here the Council dismissed the social workers following a second set of disciplinary proceedings where the first set of proceedings (for the same offences) had resulted only in written warnings.

Background

Ms Ward was the social worker responsible for the care of Baby P from February 2007. Ms Christou was Ms Ward’s manager.  After Baby P’s death, the Council conducted a case review (in 2008) during which the two social workers were disciplined under the Council’s simplified disciplinary procedure (usually used for less serious disciplinary matters) and given written warnings for misconduct.

Following the Baby P criminal trials, the Council’s new Director of Children’s Services conducted an internal inquiry into the Baby P case and the actions of the social workers responsible for Baby P’s care.  The Director found the original disciplinary procedure against Ms Christou and Ms Ward to be ‘blatantly unsafe, unsound and inadequate’.  This finding led to a second set of disciplinary proceedings being implemented against the two social workers which culminated in their summary dismissal for gross misconduct in 2010.

Following their dismissal, the social workers brought claims against the Council for unfair dismissal on the grounds that the second set of disciplinary proceedings amounted to a breach of the doctrine of Res Judicata and an abuse of process.

The Legal Position

The doctrine of Res Judicata (a Latin term meaning “matter judged”) prevents a party from re-litigating any claim or defence already litigated or adjudicated or that could have been previously litigated or adjudicated. The doctrine is supposed to ensure the finality of decisions and provide parties with certainty as to the outcome of litigation.

The concept of abuse of process is similar to the doctrine of Res Judicata and established that parties cannot reopen a matter in later proceedings that was improperly dealt with previously due to negligence or accident.

Employment Tribunal Decision

The Employment Tribunal (ET) rejected all grounds for the social worker’s claims deciding that there would be situations where it would be appropriate for an employer to reopen a disciplinary case (such as where new information had come to light).   In addition, the majority of the ET considered that a second disciplinary procedure was fair in this case as the first procedure had been ‘inadequate’.  The Claimants appealed this decision.

Employment Appeal Tribunal Decision

The ET decision was upheld by the Employment Appeal Tribunal (EAT) who held that Res Judicata only applied where there was litigation or adjudication to determine a dispute and that the Council’s simplified disciplinary procedure was so far removed from any adjudicative process that the doctrine of Res Judicata could not apply in this case.  However, the EAT did make it clear that although a second set of disciplinary proceedings may not be subject to the doctrine of Res Judicata, disciplining an employee twice for the same offence would generally be deemed unfair except in exceptional circumstances.

The Claimants appealed the EAT decision.

Court of Appeal Decision

The Court of Appeal upheld the EAT decision, confirming that the Council’s internal disciplinary procedures did not amount to litigation or adjudication.  As such, it found that the Claimants’ argument (that the second set of disciplinary proceedings was unfair as it breached the doctrine of Res Judicata) failed.

In addition, the Court of Appeal considered whether the second disciplinary procedure was an abuse of process and found that in these circumstances it wasn’t as there were valid reasons for reconsidering the social worker’s actions such as the seriousness of the allegations and the possible risk to the public.

The Court of Appeal further held that dismissal after the second disciplinary procedure was within the band of reasonable responses open to the Council.

Commentary

This case suggests that employers will not be barred from instigating a second set of disciplinary proceedings against an employee. However employers should act cautiously when doing so as it is clear from the EAT and Court of Appeal decisions in this case that disciplining an employee twice for the same offence is likely to be deemed unfair in most cases. If employers are going to take this course of action, they should ensure that they have exceptional reasons for doing so.

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