Court of Appeal hold that principle of res judicata does not apply to internal disciplinary proceedings carried out by an employer.
First disciplinary proceedings
The Appellants in this case, Ms Christou and Ms Ward, were social workers employed by Haringey Council who had been found to be at fault in the way in which they had handled the case of Baby P. The Appellants had been disciplined under the Council’s simplified disciplinary procedure, a procedure used for relatively minor breaches of conduct, and had been given a written warning.
Second disciplinary proceedings
After the Council’s disciplinary proceedings were concluded, Baby P’s mother pleaded guilty to causing or allowing his death. The mother’s boyfriend and brother were later convicted of the same offences following a trial. There was extensive media reporting of the Baby P case and much public anger was directed at failings by social services. A report was commissioned by the Secretary of State for Education into safeguarding arrangements for children in Haringey. As part of this, a Director of Children’s Services, Paul Fallon, was asked to consider whether the disciplinary action taken against the Appellants was sufficient in light of all the evidence now available, and whether there were grounds for instituting further or separate disciplinary proceedings.
Mr Fallon’s view in his report was that the original disciplinary proceedings had been “blatantly unsafe, unsound and inadequate”. Mr Fallon identified five disciplinary charges that he felt should be considered in relation to the Appellants. As a result of this, new disciplinary proceedings were instituted against the Appellants in April 2009. There were no new facts relied upon in these fresh proceedings, but the allegations related to failings of substance (such as breaching the child protection procedures) rather than the procedural complaints which had formed the basis of the first disciplinary proceedings (such as a lack of recording). As a result of the second disciplinary process, the Appellants were summarily dismissed for gross misconduct.
The Appellants appealed their dismissal but a Panel of Councillors confirmed the decision. The Appellants then brought proceedings before the Employment Tribunal (ET) for unfair dismissal. The principal ground for this was that it was unfair to subject them to a second disciplinary process at all. The ET rejected the grounds. An appeal was made to the Employment Appeal Tribunal (EAT). The appeal before the EAT was made on the basis that the doctrine of res judicata applied to the simplified disciplinary procedure so that the Council were prevented from reopening the disciplinary proceedings at all. The EAT rejected this, holding that the simplified disciplinary procedure did not constitute an adjudication between the parties and so the res judicata doctrine did not apply. The two appellants sought to challenge that decision on appeal to the Court of Appeal.
The appellants also appeared before the General Social Care Council (GSCC) in May 2010, made admissions to a number of charges and were suspended for a period.
On appeal to the Court of Appeal, Counsel for the appellants submitted that res judicata applied so as to bar the second disciplinary proceedings because these proceedings were based on the same charges as had been advanced in the simplified procedure, with no fresh evidence. It was claimed that this estopped the Council from bringing fresh proceedings. Counsel submitted that a manager imposing a sanction under the simplified procedure had authority to determine a dispute and therefore constituted a judicial tribunal so that res judicata was applicable to the decision of that manager.
The Court did not accept that the exercise of disciplinary power by an employer was a form of adjudication. It was held that this was not “a determination of any issue which established the existence of a legal right”, nor was it “determining a dispute”. It was noted that the disciplinary power of employers was one conferred on employers by reason of the hierarchical nature of the relationship, and the purpose of the procedures was “not to allow a body independent of the parties to determine a dispute between them”.
Lord Justice Elias stated that “it is far removed from the process of litigation or adjudication, which is in essence where this doctrine bites”. The critical question was held to be “not the formality of the procedures, but rather whether they operate independently of the parties such that it is appropriate to describe their function as an adjudication between the parties”. It was concluded on this basis that the doctrine of res judicata was inapplicable to the original disciplinary decision.
Abuse of process
The Appellants submitted that, even if res judicata was not directly applicable, the related doctrine of abuse applied and it was an abuse of process to subject the appellants to a second set of procedures.
Lord Justice Elias stated that the doctrine of abuse of process was not strictly applicable in a case of this kind. It was noted that, even if this doctrine was applicable, it does not provide an automatic bar to a second disciplinary process as long as it would not be abusive or oppressive to take that step. The burden was on the Appellants to establish this.
This case establishes that the doctrine of res judicata does not apply to disciplinary proceedings conducted by employers and gives useful guidance at to what sorts of decisions ‘qualify’ for the purposes of that principle.