Last week, the NHF published its final version of its new Code of Governance and made some important changes from the previous draft that will impact on those housing associations looking to adopt it.
This is the doctrine of res judicata. However, in the case of Christou and another v London Borough of Haringey, the dismissal of two employees after going through a second disciplinary procedure (which was based on the same facts as the previous procedure) was found to be fair, despite the first disciplinary procedure having resulted in a written warning.
This case was brought to the Employment Tribunal (‘ET’) by two social workers, Mrs Christou and Ms Ward, who had been involved in the care of Baby P. Mrs Christou was a team manager responsible for the supervision and management of a number of social workers including Ms Ward. Ms Ward was responsible for the care of Baby P from February 2007.
Between December 2006 and June 2007 Baby P presented several times with bruising, scratches and swelling, either with his GP or through being admitted into hospital. He was the subject of a child protection plan which meant that he should have been seen every 14 days. However, there was a period between June and July 2007 where Ms Ward had not verified where Baby P was staying. Ms Ward did not see Baby P between 20 June and 10 July 2007. Baby P died on 3 August 2007.
Initially, Haringey Council followed the simplified version of their disciplinary process when disciplining Mrs Christou and Ms Ward, which led to them both receiving written warnings for misconduct. After two men were convicted of causing or allowing Baby P’s death in November 2008, the Secretary of State initiated an investigation into child protection and child welfare services in Haringey. This led to the appointment of an interim Director of Children’s Services and a re-investigation of the issues in Baby P’s case, including the involvement of the employees. Following an investigation, Haringey decided to discipline the employees again, but this time under the full procedure, and they were dismissed for gross misconduct in April 2009.
The Employment Tribunal rejected the employees’ claims that their dismissals were unfair. It found that the fair reason for their dismissal was their misconduct and the majority of the tribunal panel found that Haringey Council was justified in bringing the second disciplinary proceedings against the employees on the basis that the new management considered the first disciplinary action taken was inadequate.
The employees appealed to the Employment Appeal Tribunal (‘EAT’). The main basis for their appeal was that Haringey was precluded from carrying out a second disciplinary procedure due to res judicata. The EAT noted that for res judicata to apply, the initial decision should be “judicial in the relevant sense”, and held that the decision of a manager under the simplified procedure was not an adjudication of a dispute between the parties so as to be "judicial". Therefore Haringey Council was not precluded from taking the second disciplinary action.
The EAT also considered the fairness of the two disciplinary procedures. The EAT did find that the fact that two sets of disciplinary procedures were carried out, and that originally a lighter sanction had been imposed, was a factor in considering whether the dismissal was fair, but that it did not necessarily make the dismissal unfair.
This case shows that it can be considered fair to discipline an employee again if it becomes apparent that a matter has not been dealt with sufficient detail, but organisations should be aware that cases in which this is appropriate will be rare. Although employers should be very careful when contemplating relying on this case to support a decision to re-discipline an employee, this could almost certainly be justified when new evidence has come to light.
For more information
For more information about conducting fair disciplinary proceedings, contact Matthew Gregson on 0121 212 7430 or email@example.com.
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