Employment Appeal Tribunal upholds dismissal at second attempt as fair


Author: Mike Tremeer


Baby P’s death almost five years ago led to the dismissal of a number of Haringey Council employees. The Employment Appeal Tribunal (EAT) has recently upheld an employment tribunal’s decision that the dismissals of the case worker directly responsible for Baby P’s care and her manager, 18 months after the death and 12 months after they were both initially issued with written warnings, were fair.

Ms Ward was the Council case worker assigned to Baby P’s care in June 2007. At this time, Baby P was on the child protection register and was subject to a child protection plan under which he was due to be seen by the Council every 14 days. On 1 June 2007, Baby P was observed to be bruised. Baby P’s mother then advised the Council that she was taking him away for a short period whilst she cared for a sick relative. Ms Ward did not ask where Baby P was to be taken and did not confirm that he had gone meaning that he was not seen by the Council at any time between 19 June 2007 and 11 July 2007. Baby P died on 3 August 2007 having sustained serious injuries.

After his death, the Council’s Local Safeguarding Children Board carried out a review of Baby P’s care. This led to both Ms Ward, and her manager Mrs Christou, agreeing to take part in the Council’s Simplified Disciplinary Process (SDP) – a shortened procedure in which the maximum sanction possible was a written warning. Both employees duly received written warnings in April and May 2008 respectively.

In November 2008, Baby P’s mother pleaded guilty to the offence of causing or allowing his death, and two men were convicted at trial of the same offence. The decision led to significant critical media and political coverage, and resulted in the Secretary of State directing the Council to consider “staffing issues” arising from the case.

The new senior management team in place responded by suspending both Ms Ward and Mrs Christou from their duties. New – and this time, full – disciplinary processes were subsequently carried out for both employees (on the basis that the original written warnings awarded were insufficient) and resulted in them both being dismissed for gross misconduct in April 2009.

The employees pursued claims of unfair dismissal alleging that media and political pressure, and not their conduct, was the reason for their dismissals. They also alleged that carrying out the second disciplinary processes, after they had already been issued with written warnings under the SDP, was unreasonable and rendered their dismissals unfair.

By a majority decision, the employment tribunal found that the dismissals were fair. A number of motives for the dismissals (including media and political pressure) were identified by the tribunal, but they were satisfied that the primary reason was the employees’ conduct in the period leading to Baby P’s death. The Council’s decision to discipline the employees twice, even where this resulted in the sanction awarded being increased, was also found to fall within the range of reasonable responses of employers in the circumstances, and so did not make the dismissals unfair.

The employees appealed to the EAT on two grounds. The first was that the Council were not entitled to carry out a second disciplinary process as the events in question had already been investigated by the Council and final penalties awarded. The second disciplinary process was therefore alleged to be in breach of the legal principle of “res judicata” (also known as “double jeopardy”).

The employees also argued that, even if the Council were not prevented from carrying out a second disciplinary process, the tribunal’s finding that the decision to do so fell within the range of reasonable responses of employers was perverse.

The EAT dismissed the appeals and upheld the tribunal’s finding. They confirmed that the principle of res judicata applies only to decisions that are “judicial in the relevant sense” and that internal disciplinary investigations did not fall within this category.

The EAT also dismissed the employees’ suggestion that the tribunal’s finding that the Council had acted reasonably by conducting a second disciplinary process was perverse. Whilst the EAT confirmed that a retrial in this way would be considered reasonable very rarely, given the serious allegations and exceptional consequences involved, this was such a case.

Comment

As stressed by the EAT, situations in which an employer can discipline for the same offence twice are likely to be rare, especially where the disciplinary sanction ultimately awarded is more severe. Certainly the media coverage and public outcry that followed Baby P’s death are unlikely to be seen in the vast majority of disciplinary situations.

However, this case does provide a helpful precedent if new management teams, or senior levels of management, become aware of events or additional facts after a disciplinary process has already been completed and wish to take further action. In exceptional circumstances, it seems that it will be possible to fairly dismiss at the second attempt.

Christou and another v London Borough of Haringey UKEAT/0298/11 and 0299/11

Mike Tremeer, Solicitor, Fladgate LLP (mtremeer@fladgate.com)

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