In Christou(1) Ward(2) v London Borough of Haringey the Court of Appeal upheld what may seem the surprising decision that an employer could revisit an earlier disciplinary decision to give a written warning for misconduct and decide to dismiss the employee after all. It would not be wise, however, to treat this as any kind of general rule as it arose from highly unusual circumstances. The case related to the dismissals of a social worker and team leader working for Haringey who were responsible for the safeguarding of Baby P, who died as a result of neglect and mistreatment by his mother and two men. The social workers were disciplined after the death of the child and each given a written warning – the most serious sanction available under a simplified disciplinary procedure used by the Borough. This was not the only disciplinary procedure the Borough had available to it – there was also a full procedure, which no doubt would have taken longer, but which could lead to dismissal.
The case became notorious after the conviction of the mother and the two men and an inquiry into Haringey’s child protection arrangements was set up at the behest of the Secretary of State for Education at the time, which concluded that the Borough’s arrangements were inadequate. A new Director of Children’s Services was appointed who was prompted by the minister to look into the role of social workers in the whole sorry business. After a further investigation, it was considered that the original disciplinary procedure was “blatantly unsafe, unsound and inadequate“ and five further disciplinary charges were brought. After a new hearing, both were dismissed for gross misconduct.
The Court considered the reasons advanced by the employees as to why it was unfair to re-open the disciplinary procedure and rejected them all. In particular, it made it clear that the “res judicata“ principle (that you shouldn’t have to face the same allegation twice), applies only to courts and tribunals – not internal procedures, and that even if it had, the two disciplinary procedures in fact dealt with different areas of misconduct. The Court also considered that the claimants had not shown that the second disciplinary process was abusive or oppressive.
This case could potentially be helpful for employers, because it establishes that it is not necessarily unfair to discipline an employee more than once for the same event. However, the facts were unusual, and it should not be taken to mean that it is always fair to discipline an employee twice for the same disciplinary offence.