Christou & Ward v Haringey
In a recent decision in the case of Christou & Ward v Haringey, the Employment Appeal Tribunal (EAT) had to determine whether an employer could fairly dismiss an employee in respect of the same facts as had previously led to a lesser sanction under disciplinary proceedings. The EAT decided that the employer could, but only in exceptional circumstances.
The case at hand was an appeal against the decision of the Employment Tribunal that the sacking of two Haringey Borough social workers for disciplinary issues associated with the much publicised case concerning death of Baby P was not unfair in circumstances where they had both previously been disciplined and received written warnings for the same disciplinary offences. The dismissals took place following the considerable media interest in the case and following a change of management.
The EAT upheld the Employment Tribunal’s judgment that the dismissals were not unfair. The concepts of "double jeopardy" and "res judicata" (which prevents the same matter being re-litigated) did not apply to internal disciplinary proceedings. It was therefore possible for disciplinary proceedings to be brought again for the same reasons and there was no rule of law that any subsequent dismissals would be unfair. The ordinary considerations of fairness and reasonableness in the circumstances would apply to the decision to dismiss, taking into account the existence and outcome of earlier proceedings.
In that regard, the EAT upheld the judgment that the dismissals were fair in the circumstances. Had the reason for the dismissals been the political or media pressure against which background the further disciplinary proceedings were brought, the dismissals might well have been found to be unfair, but the reason for the dismissals was the employees’ conduct, which was of a greater degree of seriousness in the minds of the new management team than the old team who had given the employees warnings only.
Notwithstanding the decision that the dismissals were fair in the circumstances, employers should be mindful that it will generally run counter to the principles of fairness for an employer to discipline an employee twice for the same offence, and it is only in extremely rare cases where a decision of that nature would be found to fall within the "range of reasonable responses" that a reasonable employer might adopt.
Where new evidence has come to light, that may however be a different matter and it is more likely to be fair to re-start disciplinary proceedings in those circumstances, although even in that position, employers should proceed with caution when deciding whether to re-open disciplinary investigations and whether to impose disciplinary sanctions in respect of an already "closed" matter.