Can an employer put an employee through a second disciplinary procedure, for the same offence, on the grounds that the original disciplinary procedure didn't impose a serious enough sanction?
Yes, in exceptional circumstances, says the Employment Appeal Tribunal in Christou & Ward v Haringey, a case stemming from the death of Baby P in 2007.
Ms Ward was the social worker responsible for Baby P. Ms Christou was her supervisor, whom Sharon Shoesmith promised would not lose her job over the death of Baby P. Both employees were put through Haringey's 'Simplified Disciplinary Procedure'. The maximum penalty under the Simplified Disciplinary Procedure was a written warning, which they both duly received.
Subsequently, after the media storm, the OFSTED inspection and the sacking of Sharon Shoesmith, the new regime at Haringey commenced a second set of disciplinary proceedings against them arising out of the same facts. They were dismissed. They argued that it was legally impermissible, or simply unfair, to dismiss based upon a disciplinary offence for which they had already been sanctioned.
The EAT (Slade J presiding) upheld the majority decision of the employment tribunal that the dismissals were not unfair. It held there was no concept of 'double jeopardy' or 'res judicata' in internal disciplinary proceedings. It held that whilst it would be unusual for a second set of disciplinary proceedings to follow a first set arising out of 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 spotlight and the new management regime which took a different view of the seriousness of the employees' conduct (see para 112).
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