CAN AN EMPLOYER HAVE TWO BITES OF THE CHERRY IN EMPLOYMENT DISCIPLINARY MATTERS?

Summary

The dismissal of two employees connected to the Baby P case have been held to be fair despite the fact that the employees were originally given written warnings. The employees were subsequently subjected to second formal disciplinary proceedings for the same allegations and by new management, the result of which was their dismissal from the London Borough of Haringey.

Background

The relevant facts were as follows:

• Baby P died on 3 August 2007; his name had been on the child protection register.
• Employee 1 was responsible for the supervision and management of a number of social workers including Employee 2.
• From 2 February 2007, Employee 2 had been the nominated social worker with specific responsibility for Baby P’s case.
• Employee 2 had not seen Baby P between 20 June and 10 July 2007. when under the Child Protection Plan she was to see Baby P every 14 days
• During May 2008, in accordance with Haringey’s Simplified Disciplinary Procedures, allegations were considered against Employee 2 of a lack of recording, a failure to put records onto the “Framework I” database in a timely manner and a failure to call a legal planning meeting following child protection concerns in relation to Baby P. It was held that these allegations amounted to misconduct and Employee 2 was issued with a written warning.
• Under the same Simplified Procedure, Employee 1 was also given a written warning for lack of recorded supervision, lack of documented management direction and no management knowledge of social work tasks that were incomplete.
• On 12 November 2008, the then Secretary of State for Children, School and Families announced that he had asked a number of bodies to conduct an investigation into child protection and child welfare services in Haringey.
• A decision was made to take a fresh look at all of the issues involved in the Baby P case including matters arising from the involvement of Employee 1 and 2, even though they had already been subjected to earlier disciplinary proceedings.
• It was found that what were perceived to be very serious matters had not been properly investigated and as such, should not have been regarded as relatively minor breaches of conduct. After another investigation and disciplinary hearing under a formal disciplinary procedure, Employee 1 and 2 were subsequently dismissed for gross misconduct.

The Employment Appeal Tribunal’s (EAT) Decision

The EAT held that where there is a risk to a member of the public and this risk was clearly identified, an employer is entitled to bring a second disciplinary action.

Going Forward

Employers should not view this decision as the green light to re-discipline employees for instance, if they do not agree with a decision that a manager has already made.

The circumstances in which it may be held to be reasonable for an employer to change their view as to the appropriateness of a disciplinary sanction previously imposed and to embark on second disciplinary proceedings on the same facts are likely to be extremely rare.

This case was very unique and there appears to have been four drivers for the dismissals of the two employees involved including the actual conducts relied upon by Haringey, the death of Baby P, media pressure and political pressure.

In summary therefore there is no general concept of employers having two bites of the cherry in internal disciplinary proceedings. In this particular case however, it was held to be reasonable for Haringey to dismiss the two employees involved.

Rachael Jessop, Solicitor

Contact Information

fgmedia@floydgraham.co.uk

+ 44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice.