A recent Employment Appeal Tribunal (“EAT”) decision has considered whether an employer can legitimately dismiss an employee after disciplining a second time for the same offence.
Christou and another v London Borough of Haringey
This case flowed from the much publicised death of ‘Baby P’ in 2007.
Mrs Christou was a team manager responsible for the supervision of a number of Haringey’s social workers, including Mrs Ward, who was the social worker responsible Baby P’s care from February 2007.
Despite concerns, there were periods of time in which the health of Baby P was not checked. Baby P died on 3 August 2007.
Following a review of the death, in April and May 2008 both employees received written warnings for misconduct. They had both agreed to proceedings under the Council’s ‘Simplified Disciplinary Procedure’, under which the maximum sanction was a written warning.
Following comprehensive (negative) media coverage and the appointment of an interim Director of Children’s Services, a re-investigation took place, including an assessment of the employee’s involvement. As a consequence of this investigation, Haringey decided to discipline the employees again under their full disciplinary procedure.
Both employees were summarily dismissed for gross misconduct in April 2009 and brought unfair dismissal claims to the Employment Tribunal. The Tribunal found that the dismissal was fair due to the employee’s conduct. Further, Haringey was justified in bringing the second disciplinary proceedings because the new management considered the initial sanctions inadequate.
The EAT upheld the decision and dismissed the appeals. The EAT considered whether the doctrine of res judica – commonly referred to as ‘double jeopardy’ – applied. The doctrine prevents the litigating of a matter which has already been decided upon.
The EAT held that the doctrine did not apply in this situation. Internal disciplinary hearings and decisions by managers fall outside the scope of litigation. The fact that two different sets of internal proceedings had been used was simply a factor to be considered when assessing the fairness of the dismissal but it was not fatal to the ultimate decision to dismiss.
The above decision indicates that employers can discipline an employee twice for the same offence, dismissing the second time around. However, the decision should be treated with extreme caution by employers. The EAT commented that the circumstances under which such a decision would be fair are likely to be extremely rare.
Employers should always take advice prior to commencing a second disciplinary process for the same offence. Sometimes, new information may have come to light which may provide justification. If no new information exists it will be difficult for an employer to rely upon the above case.
If you require any advice in relation to disciplinary matters, please contact Joanne Holborn or Tom Scaife on 01228 552600. Alternatively, email one of the team at HR@baineswilson.co.uk.
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1 June 2012