Can you discipline twice for the same offence?

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Can an employer subject an employee to further disciplinary sanctions when it has already investigated matters and imposed a warning in relation to the same set of facts? This was the issue the Employment Appeal tribunal had to determine in the case of Christou and Ward v London Borough of Haringey [2012].

The facts

Baby P sadly died on the 3rd August 2007 and his mother and two others were subject to criminal proceedings. Ms Ward, the social worker who had responsibility for Baby P and her line manager, Mrs Christou, were the claimants in this employment tribunal case.

The Council had a simplified disciplinary procedure which removed the employee’s right to appeal in return for accepting a manager’s disciplinary sanction that fell short of dismissal. Both claimants agreed to this procedure being used. They received 12 month warnings for their failures and copies of the letters setting out these warnings were forwarded on to their professional body, the General Social Care Council.

Following intervention by the Secretary of State for Children, new management reinvestigated matters and concluded that the earlier disciplinary proceedings were inadequate. They decided that the simplified approach was wrong and fresh additional charges were brought against the claimants. Ultimately, Ms Ward and Mrs Christou were dismissed and they brought claims of unfair dismissal based on the fact that they were being tried twice for the same offence (‘double jeopardy’) and abuse of process.

The Employment Tribunal by a majority upheld this decision, whereas the minority member agreed with the arguments raised by the claimants. This matter was unsurprisingly appealed.

EAT held dismissal was fair

The EAT found the dismissals to be fair for several reasons, the key ones being:

  • There was no abuse of process even though both disciplinary investigations arose out of the same set of facts.
  • The fairness of the employer’s actions was simply to be considered as part of a Tribunal’s normal analysis and should be assessed in light of the employer’s reasons for acting as it did.
  • There was no double jeopardy it was not appropriate to apply this concept to an internal disciplinary process.

However, the EAT cautioned that it was likely to be extremely rare for an employer to be able to go back and to re-open disciplinary proceedings and cautioned employers that they should take no encouragement to act in this way.

The right decision?

This is a surprising decision from a procedural perspective, and the circumstances that triggered the dismissals may well have influenced the EAT’s stance.

From a legal perspective, it is difficult to accept that there was no abuse of process given the set of facts available at the time of the original investigation. Although the charges were varied, it was not a scenario where significant new facts came to light.

In our view, it is unconvincing for the EAT to state that that the provisions of double jeopardy were not satisfied, given that the line manager’s original decision was intended by all involved at the time to be final.

It is noteworthy that the ACAS code was not even referred to in this judgment. The Code makes it very clear that the value of having a disciplinary procedure is in the clear guidance it gives to both employers and employees. It seems to us that it is against the spirit of the Code and natural justice to allow an employer a ‘second bite at the cherry’.

Can employers now discipline twice for the same offence?

Whilst the EAT arrived at what it thought was the ‘right’ result in the highly charged context, it clearly didn’t intend to set a precedent as it stressed how unique this case was.

This case should be viewed as the exception that breaks the rule. We recommend that employers follow their own procedures and avoid charging an employee twice under their disciplinary processes if they arise out of the same set of facts. If you do re-open an investigation or disciplinary process, you will risk a successful claim of unfair dismissal. However, depending on the circumstances, any award might be reduced if the Employment Tribunal feels that the dismissal is more wrong in process than substance and to take into account the extent to which the employee contributed to their own dismissal.

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