Double jeopardy in the Employment Tribunal?

Behind the very human tragedy of the Baby P case in 2007, a number of interesting employment law cases have arisen.  The most famous of these was of course the dismissal of Director of Children and Family Services Sharon Shoesmith, following media pressure and the direct intervention of a government minister.  However, late last week the Employment Appeal Tribunal passed down its judgement on a case involving Ms Ward, the social worker responsible for Baby P and her supervisor, Mrs Christou, who despite being the subject of disciplinary proceedings and receiving warnings over their performance, seemed to avoid dismissal.  Or at least, so they thought. 

Initially, Mrs Christou and her colleague were given assurances by Mrs Shoesmith that they would not lose their jobs over their handling of the case and were put through what was known as the Council's "simplified disciplinary procedure".  Under that procedure,  a warning was the maximum sanction.  But, following the media's spotlight on the case, Mrs Shoesmith's departure and the appointment of a new Director of Children and Family Services, a decision was taken to revisit the process and the appropriateness of the original sanction given the very serious breaches of the child's care plan.  Both employees were then dismissed following a second disciplinary hearing.

The EAT upheld the majority decision of the employment tribunal that the dismissals were not unfair. It held there was no concept of 'double jeopardy' in internal disciplinary proceedings, rejecting the argument that it was impermissible to dismiss in circumstances where the same situation had already been looked at and dealt with by the employer. It said that whilst it would be exceptional for a second set of disciplinary proceedings to follow a first, arising out of largely the same facts, this was a 'rare' case and the tribunal was entitled to hold that the employer's actions were fair in the light of the media attention and the new management regime which took a different view of the seriousness of the employees' performance and conduct.

Those of you who attended our last Employment Exchange event will recall the talk given on the use of warnings and how Tribunals can sometimes adopt an approach which seems at times inconsistent.  The Christou case does turn on its own facts but reminds us that even the relative simplicity of discipline and dismissal cases can be deceptively complex.  Putting aside the tragic consequences of the Baby P case, it's difficult not to be left with a sense of discomfort about the outcome in this case given the way it was initially handled by the Council.  You can perhaps see why the original ET only reached their decision by a majority, rather than unanimously.

For help with handling discipline and dismissals, contact a member of our employment team.