Is it fair to re-open disciplinary proceedings and dismiss an employee when previously a lesser sanction was imposed?

May 2013

Is it fair to re-open disciplinary proceedings and dismiss an employee when previously a lesser sanction was imposed?

An employee with sufficient continuous employment has the right not to be unfairly dismissed. This means that their dismissal must be for one of a number of ‘fair’ reasons and the employer must act reasonably in treating that reason as sufficient to justify dismissal. This requires the employer to follow a fair procedure and the decision to dismiss must fall with the range of reasonable responses open to a reasonable employer.

One potentially fair reason for dismissal is an employee’s conduct or, rather, misconduct. To establish conduct as the reason for dismissal, the employer must have a genuine belief on reasonable grounds, after reasonable investigation, that the employee was guilty of the misconduct in question.

A recent Court of Appeal decision (Christou and anor v London Borough of Haringey 2013 EWCA Civ 178) has confirmed that it may not always be unfair for an employer to dismiss an employee where they have previously decided that a lesser sanction was appropriate and that the doctrine of “res judicata” does not apply to disciplinary proceedings.

‘Baby P’ died in August 2007 as a result of chronic lack of care and abuse by his mother and two men, whilst on the child protection register. Following his death, two social workers employed by the local Council were disciplined under the Council’s simplified disciplinary procedure where dismissal was not an option. Both employees received written warnings for procedural failings/misconduct, but were not dismissed.

Following the conviction of Baby P’s abusers, and substantial media coverage, the Secretary of State for Education commissioned a report into safeguarding arrangements for children in Haringey, which included an investigation into the role played by social service staff in the case. This report concluded that the disciplinary proceedings taken against the two social workers was “blatantly unsafe, unsound and inadequate”, following which the Council instituted fresh disciplinary proceedings against the social workers and subsequently dismissed them both.

The social workers issued proceedings in the Employment Tribunal claiming, among other things, that it was unfair for the Council to reopen the disciplinary proceedings against them, which meant that their dismissals were unfair. The Tribunal rejected this and concluded that the Council had acted fairly as, among other things, the misconduct in question justified dismissal and the original disciplinary action was inadequate.

The social workers then appealed to the Employment Appeal Tribunal (“EAT”) and argued that they had suffered double jeopardy and that the doctrine of “res judicata” (a rule against being tried for the same crime twice) applied. Alternatively, they argued that it was an abuse of process to repeat the disciplinary process. However, the EAT ruled that the doctrine of res judicata did not apply and there was no abuse of process. The Council’s decision to re-open the disciplinary proceedings was relevant to the fairness of the dismissals, but did not mean they were necessarily unfair.

The social workers went on to appeal again, this time to the Court of Appeal, who have recently rejected the appeal and confirmed that the doctrine of res judicata does not apply to disciplinary proceedings conducted by employers and that re-opening the disciplinary proceedings was not an abuse of process. What is important is whether a dismissal in such circumstances is fair, which includes asking whether it was fair to institute the second proceedings at all.

The Employment Tribunal’s decision that the dismissals, which were made after a lesser sanction had already been imposed on the same facts, were fair is surprising, although perhaps not in the circumstances, which were particularly grave, and bearing in mind the extensive media attention the Baby P case received. Normally, an employer can expect to have to stand by any initial disciplinary sanction imposed and the decisions above have confirmed that only in truly exceptional circumstances is it likely that re-instigating the disciplinary process and deciding on a different sanction will still be fair. Employers, therefore, ought to ensure that the appropriate disciplinary procedure and sanction is used the first time round, to avoid a finding of unfair dismissal against them.

We are holding a seminar on 4 July 2013 at the Waterside Theatre in Aylesbury on “Managing Problem Employees”.  To RSVP or for more information, please telephone us on  01296 318500.

This seminar has now closed.