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Disciplinary proceedings - Can an employer re-discipline for the same offence?
Most well drafted employment contracts will include a formal disciplinary procedure, or refer to a separate disciplinary procedure to regulate how the employer will deal with disciplinary issues.
If there is no contractual procedure, then as a minimum the ACAS Code and guidelines must be adhered to. If it is not then the Employment Tribunal have power to increase any compensatory award by up to 25% for failure to follow the Code.
What if the contractual sanction is subsequently not considered stringent enough? Can the employer put the employee through a second disciplinary procedure for the same offence?
This was the question for the Employment Appeal Tribunal (“EAT”)in the case of Christou & Ward v L.B. Harringey UK EAT/0298/11/DIV which held that in exceptional cases second disciplinary procedures were permissible and that there was not such thing as ‘double jeopardy’ or ‘res judicata’ in internal disciplinary proceedings.
This case concerned the well publicized events surrounding the unfortunate death of Baby P. Mrs Ward was the social worker responsible for Baby P and Mrs Christou was her supervisor, who Sharon Shoesmith (the head of Children’s Services at Haringey at the time) promised would not lose her job over the death of Baby P.
The first disciplinary hearings were conducted under the Council’s Simplified Disciplinary Procedure, under which the maximum penalty was a written warning, which was duly given. There then followed an OFSTED inspection, and Sharon Shoesmith was removed and a new regime was put in place.
Against this background the new Director of Children's Services regarded the first disciplinary proceedings as unsafe, unsound and inadequate, and he took issue with the use of the simplified procedure. He felt the more serious matters had not been properly investigated and grounds existed to justify further disciplinary proceedings. Following a second disciplinary hearing the Claimants were dismissed for breaches of the Child Protection Procedures in relation to visiting frequency amongst other failures.
Unfair dismissal proceedings were issued, but the Employment Tribunal (“ET”) found, by a majority, that they had been fairly dismissed. The Claimants appealed against this decision.
The EAT rejected the appeal, saying that the ET were not wrong in concluding that the Council was not precluded from conducting second disciplinary proceedings against them when a different view was taken of the seriousness of their failures than that taken by the previous management. It was thought that the previous record keeping and procedural charges against them using the Simplified Procedure did not adequately reflect the seriousness of their failings. The previous proceedings were rightly taken into account in determining the fairness of the dismissals. Also the ET had not misdirected themselves or come to a perverse conclusion in deciding that the delay between the events which formed the basis of the complaints against the claimants and the second disciplinary proceedings had not caused them prejudice or rendered the dismissals unfair.
The circumstances of this case are unusual, and in most cases the Tribunal will expect an employer to get it right the first time, and are not going to allow employers to have a “second bite at the cherry” in general. There must be a very serious and real reason for doing this, which will stand up to objective scrutiny, otherwise the employee is likely to claim bullying and victimisation.
Before considering further disciplinary proceedings for the same offence the contractual documentation must be carefully checked to ensure that there is nothing in the contractual provisions or internal policies which prevent this. The key is to have a well drafted disciplinary procedure which, whilst it can set up a Simplified Procedure for minor infractions, reserves the right to by pass this for more serious matters where dismissal is a serious possibility.
If you want to discuss any employment issues please contact Janet Long by email at firstname.lastname@example.org
The contents of this article are intended for general information only. It is not a substitute for legal advice, and shall not be deemed to be or constitute legal advice. We therefore cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. We will, however, be pleased to advise you on the specific facts of your case.