Christou & Anor v London Borough of Haringey

Internal disciplinary proceedings conducted by an employer’s manager under a simplified contractual procedure are not judicial determinations capable of creating cause of action or issue estoppel. Nor are such proceedings litigation capable of founding an abuse-of-process objection.

Where an employer brings a second disciplinary process on substantially the same facts, the earlier process and sanction must be considered when assessing fairness under section 98(4) ERA. There is no rule that a second process is necessarily fair because the first was inadequate, or necessarily unfair because the same facts were previously treated as minor. The assessment is fact-specific and circumstances justifying a changed sanction will be extremely rare.

The appellants were a social-work team manager and the allocated social worker for Baby P. They first received written warnings under the respondent’s simplified disciplinary procedure. Following a later review, the respondent commenced full disciplinary proceedings concerning substantive failures in dealing with the Cricklewood absence and, for Ms Ward, visiting frequency. Both were summarily dismissed in April 2009. Their internal appeals were dismissed.

An Employment Tribunal dismissed their unfair-dismissal claims. By majority, it held that the second proceedings and dismissals were fair. The appellants appealed, contending principally that the earlier warnings precluded the second proceedings, that the dismissals were unreasonable, and that delay, inadequate investigation and apparent bias rendered them unfair.

1. Appeals dismissed. The Employment Tribunal made no error of law and reached no perverse conclusion in holding that both dismissals were fair.

2. The simplified procedure involved a manager deciding a sanction after a short hearing. It did not adjudicate a dispute between parties in the judicial sense required for cause of action or issue estoppel. Internal disciplinary proceedings were also not litigation capable of founding abuse of process. The fairness of a second process instead fell to be assessed under section 98(4) ERA.

3. Previous disciplinary action based on the same facts was a material consideration, but it did not create an absolute bar. Sarkar established no more than that the earlier process must be taken into account in the overall fairness assessment. A new management view that the earlier procedural charges and warnings understated the gravity of the substantive failures was a finding open to the Tribunal. Circumstances in which an employer may reasonably revisit a sanction on the same facts are likely to be extremely rare.

4. The Tribunal was entitled to find that the actual reasons for dismissal were the appellants’ conduct, not media or political pressure. It was not necessary to establish negligence under the Bolam test before an employer could reasonably treat poor professional judgment by qualified social workers as gross misconduct. The relevant conduct was assessed by reference to what was known at the time, not with hindsight arising from Baby P’s death.

5. The findings that dismissal for the Cricklewood failures was within the range of reasonable responses, and that the investigation was reasonable, were open to the Tribunal. The delay did not make the dismissals unfair because the Tribunal was entitled to find no material prejudice. The unraised apparent-bias argument also failed on the Tribunal’s findings.

• Employment Appeal Tribunal: Appeals dismissed: [2012] UKEAT 0298_11_2505.
• Employment Tribunal: By a judgment sent to the parties on 20 October 2010, the Tribunal dismissed both claims for unfair dismissal. Its majority held that the dismissals were fair.