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