No Unfair Dismissal Where Employees Re-disciplined

An employer was entitled to bring a second set of disciplinary proceedings based on the same facts where, following a change of management, it took a different view of the seriousness of the matters involved.   The resulting dismissals were fair. 

In Christou and Ward v London Borough of Haringey G and W were social workers involved in the Baby P case.  G was a team manager responsible for the supervision and management of W and W was responsible for the care of Baby P.   Following Baby P’s death, Haringey undertook a case review.  This resulted in C and W receiving written warnings for misconduct under Haringey’s simplified disciplinary procedure.   That procedure was used in cases where the likely sanction would be a verbal or written warning.  Dismissal was not a sanction that could be imposed.

After Baby P’s mother and two others were convicted of causing Baby P’s death and Haringey’s safeguarding services were found to be inadequate, an interim Director of Children’s Services was appointed and required to consider staffing issues in the Baby P case.  The issues in that case were re-investigated, including G and W’s involvement.  Haringey decided to institute further disciplinary proceedings, this time using the full disciplinary procedure.   Although the factual basis of the allegations considered at the second hearing was the same, the allegations were framed differently and the failings were classed as substantive (failing to identify the whereabouts of Baby P) rather than procedural (failures in record-keeping).   G and W were dismissed for gross misconduct and claimed unfair dismissal. 

The EAT upheld the employment tribunal’s decision that the dismissals were fair.  The fact that an employee’s misconduct has been considered under two sets of internal disciplinary proceedings, with a lesser sanction given in the first, is a factor to be taken into account when assessing the fairness of the dismissal.   However, there is no rule of law that a dismissal following second disciplinary proceedings brought on the same facts will be unfair, nor that it is fair to take second disciplinary proceedings if the first set is shown to be inadequate or comes about after a change of management. 

The fairness of the dismissals depended on Haringey’s reasons for instituting the second set of disciplinary proceedings.  The tribunal found that this was because new management considered the employees’ failings to be considerably more serious than was reflected by the maximum sanction that could be imposed under the simplified procedure.  This was a reasonable view to take and the dismissals were fair. 

The EAT was keen to emphasise that the circumstances in which it may be reasonable for an employer to change its view of the appropriateness of the disciplinary sanction imposed and to embark on second disciplinary proceedings based on the same facts will be extremely rare.  Employers should therefore treat the decision in this case with caution and not assume that they can safely bring a second set of disciplinary proceedings based on the same facts and impose a higher sanction.  Any employers considering taking this course of action should take legal advice before doing so.