Labour & European Law Review Weekly Issue 276 05 July 2012
Although employers cannot generally discipline employees twice for the same offence, the Employment Appeal Tribunal (EAT) held in Christou and Ward v London Borough of Haringey that they can do so in exceptional circumstances.
In February 2007, Ms Ward became the named social worker for Baby P, the young boy whose death in August 2007 made national headlines. Her supervisor was Mrs Christou.
After Baby P died, the local safeguarding board conducted a serious case review overseen by the then Director of Children and Young Peoples’ Services, Sharon Shoesmith. At some point in April Ms Shoesmith assured Ms Ward she would not lose her job.
Both Ms Ward and Mrs Christou were interviewed in May 2008 as part of a simplified disciplinary procedure and both were given a written warning, the maximum penalty under the procedure.
However, both were sent on leave in November 2008 after a report into child welfare services in Haringey identified a number of serious concerns. A new management team started a second set of disciplinary proceedings and the two women were dismissed in April 2009. Their appeals against dismissal were rejected.
Both women brought unfair dismissal claims, arguing that they could not be dismissed for an offence for which they had already been disciplined and given a warning.
The Tribunal said that the decision to dismiss the women was within the range of reasonable responses open to the employer.
It also found that the decision by the new managers to subject them to a second set of disciplinary proceedings was justified as they had taken a very different view of the seriousness of the situation, compared to the previous managers.
The EAT upheld the Tribunal’s decision. It said that although the circumstances in which employers could reasonably change their mind about the appropriateness of a disciplinary sanction were rare, they were not, as a matter of law precluded from doing so.
Given the circumstances of this case, the Tribunal was right to conclude that the employer was entitled to conduct the second set of proceedings.
The Tribunal pointed out, there was widespread public concern about the case which was reflected in the media coverage. As the misconduct involved a risk to members of the public, the new managers were entitled to bring subsequent disciplinary action.
The decision to dismiss was not therefore unfair and was within the range of reasonable responses open to the employer.
This is an extremely exceptional case and should not be deemed to give employers the right to hold subsequent disciplinary hearings based upon the same set of facts.