InChristou and another v London Borough of Haringey  EWCA Civ 178, the Court of Appeal considered appeals brought by two social workers dismissed over their involvement in the Baby P case. The court had to consider whether it was fair for the employer to summarily dismiss two employees after disciplining them a second time for the same conduct.
An employer that dismisses a qualifying employee will be held to have unfairly dismissed them, unless:
- It can show that the dismissal was for one of the five potentially fair reasons: conduct, capability, redundancy, breach of a statutory restriction, or “some other substantial reason” (section 98(1) and (2), Employment Rights Act 1996 (ERA 1996)).
- The tribunal finds that the employer acted reasonably in treating the potentially fair reason as a sufficient reason for dismissal (section 98(4), ERA 1996).
- Whether an employer acted reasonably must be assessed objectively; the tribunal must consider whether the employer’s decision to dismiss fell within the range of reasonable responses that a reasonable employer in those circumstances and in that business might have adopted.
The doctrine of res judicata prevents the re-litigating of a matter already litigated, or that could have been litigated, previously.
Abuse of process
The doctrine of abuse of process is separate from the doctrine ofres judicatabut has the same purpose: to bring finality to litigation and to avoid the oppression of subjecting a defendant unnecessarily to successive actions
Mrs Christou was a team manager responsible for the supervision and management of a number of social workers including Ms Ward, who from February 2007 was responsible for the care of Baby P. Baby P was on the child protection register and the subject of a child protection plan which meant he should have been seen every 14 days. On 1 June 2007, he was seen to be bruised. Shortly afterwards, his mother then said she was taking him to stay in Cricklewood. Ms Ward did not ask where she was to stay, did not verify that she had gone and did not see Baby P between 20 June and 10 July 2007. Baby P died on 3 August 2007. Haringey had two contractual disciplinary procedures:
- The simplified disciplinary procedure (SDP). This was used where an investigation or fact finding interview had taken place, there was a case to answer, the likely sanction would be a verbal or written warning and both sides agreed a short hearing would be appropriate. There was no power to dismiss under the SDP and no right of appeal from a sanction imposed.
- The full procedure.Under this procedure a hearing was chaired by a manager and relevant documentation had to be exchanged in good time before the hearing. Both sides presented their case and could call witnesses who could be cross-examined. A sanction of a written warning or above could be appealed. Appeals took the form of a complete rehearing and could confirm or overturn the original decision by either increasing or decreasing the sanction imposed.
Following Baby P’s death, Haringey’s Local Safeguarding Children Board undertook a case review. As a result, in April and May 2008, Mrs Christou and Ms Ward (the employees) agreed to proceedings under the SDP and were given written warnings (to remain live for 12 months) for misconduct. In November 2008, after the criminal trial over Baby P’s death, the Secretary of State forChildrenSchoolsand Families announced an investigation into child protection and child welfare services in Haringey. On the same day, the employees were put on leave. In December 2008, a report was published stating that Haringey’s safeguarding services were inadequate and needed urgent and sustained attention. The Secretary of State directed Haringey to appoint an interim Director of Children’s Services and required him to consider staffing issues arising from the Baby P case. This took the form of an re-investigation of the issues in Baby P’s case, including the involvement of the employees. Following an investigation, Haringey decided to discipline the employees again, this time under the full procedure. They were subsequently summarily dismissed for gross misconduct in April 2009. Both employees unsuccessfully appealed against their dismissals and subsequently brought claims for unfair dismissal against Haringey.
The employment tribunal decision
The tribunal found that the dismissals were fair. It identified “four potential drivers” to the dismissals: the actual conduct of the employees, the death of Baby P, media pressure and political pressure. The tribunal was satisfied that the reason for the dismissals was the employees’ conduct and not the other external factors. The employees argued that it was unfair to reopen the disciplinary proceedings and so the dismissals were necessarily unfair. However, the tribunal found that there would be circumstances where it would be appropriate to reopen a case, such as where new information arose, or if there was fraud or corruption. The fact that there had been two disciplinary procedures was taken into account when considering whether the decision to dismiss fell within the range of reasonable responses available to Haringey, but was notres judicata. The majority of the tribunal panel found that Haringey was justified in bringing the second disciplinary proceedings against the employees on the basis that the new management considered the first disciplinary action taken was inadequate. The employees appealed.
The EAT decision
The EAT upheld the tribunal’s decision and dismissed the employees’ appeals. It held that the decision of a manager under the internal SDP was not an adjudication of a dispute between the parties, and therefore no cause of action or issue estoppel arose to stop Haringey from taking the second disciplinary action. The fact that an employee’s misconduct had been considered under two sets of internal proceedings, and that a lighter sanction had been given originally, was a factor to be taken into account in assessing the fairness of dismissal. However, there was no rule of law that dismissal following second disciplinary proceedings brought on the same facts will be unfair. In the circumstances, the tribunal had correctly taken into account the first disciplinary proceedings when considering the overall fairness of the dismissals, and whether they fell within the range of reasonable responses open to the employer. While upholding the tribunal’s decision, the EAT made clear that cases in which it is fair to discipline an employee twice for the same offence will be extremely rare. The claimants appealed to the Court of Appeal. In addition to theres judicataargument, they submitted that it was an abuse of process to subject them to a second set of disciplinary procedures, because the parties had expressly agreed to the use of the SDP and the claimants had waived their rights to appeal the sanction imposed.
The Court of Appeal (Elias LJ giving the leading judgment with which the rest of the court agreed) upheld the EAT’s decision.