Christou v Haringey LBC

The Court of Appeal dismissed the appellants' challenge to their summary dismissals for gross misconduct arising from the Baby P case. The court held that employers' internal disciplinary procedures do not generally attract the doctrine of res judicata because they are not adjudicative bodies determining legal rights in the same way as courts or independent professional tribunals; accordingly the simplified disciplinary procedure did not estop the respondent from re-opening the matter. The court also treated the related abuse of process argument as essentially subsumed within the statutory unfair dismissal inquiry under section 98 of the Employment Rights Act 1996, which requires a tribunal to ask whether the employer acted reasonably in all the circumstances. The majority view of the Employment Tribunal that a second disciplinary process was fair (given the seriousness of the misconduct and a change of management) was not shown to be perverse, and the Employment Appeal Tribunal had correctly dismissed the appellants' appeals. A separate bias complaint was refused permission because it had not been advanced below and fresh evidence might be required.

Background and parties:

The appellants were two social workers employed by London Borough of Haringey who had earlier been given written warnings under a simplified disciplinary procedure in respect of their handling of Baby P. After Baby P's death and further high-profile review, fresh investigative work led to full disciplinary charges and summary dismissals for gross misconduct, which were upheld on appeal within the council. The appellants brought unfair dismissal claims to the Employment Tribunal and appealed to the Employment Appeal Tribunal; they then appealed to the Court of Appeal.

Nature of the claim / relief sought:

• The appellants sought a declaration that their dismissals were unfair under section 98 of the Employment Rights Act 1996 and contended primarily that it was unfair to re-open the earlier disciplinary process (double jeopardy); related submissions included that res judicata or abuse of process should bar the second proceedings and that there had been bias in the appeal panel.

Issues framed by the court:

• Whether a decision reached under an employer's simplified disciplinary procedure can give rise to res judicata / cause of action estoppel so as to prevent a later disciplinary process;
• Whether bringing a second disciplinary process in these circumstances amounted to an abuse of process;
• How the Employment Tribunal should assess fairness under section 98 ERA 1996 when earlier disciplinary action had been taken;
• Whether a late complaint of bias by a member of the internal appeal panel could be entertained on this appeal.

Court's reasoning and conclusion:

The court concluded that internal employer disciplinary procedures are not ordinarily adjudicative in the relevant sense and therefore do not attract the res judicata doctrine in the way a statutory or independent professional tribunal might; the hierarchical contractual nature of employment disciplinary powers distinguishes them from independent domestic tribunals considered in authorities such as Meyers and Coke-Wallis. The abuse of process principle (Henderson v Henderson / Johnson v Gore Wood) was discussed, but the court observed that the fairness question under section 98 ERA 1996 necessarily requires tribunals to consider whether it was reasonable to re-open matters; that assessment is fact‑sensitive and may permit a second disciplinary process where, for example, the misconduct poses a risk to the public or a change of management takes a different view of seriousness. The EAT and Employment Tribunal had reasonably concluded that, on the facts of this case, reopening was fair given the gravity of the allegations and public protection considerations. The bias point relating to a councillor on an internal appeal panel was refused permission because it had not been run before the ET and might require fresh evidence; the court would not draw a serious inference of actual bias without hearing from the councillor.

Practical note: the court observed that even if an internal decision were wrongly reopened, a tribunal must still assess fairness under section 98 and a breach of res judicata would not automatically be decisive of unfairness.

Appeal dismissed. The Court of Appeal held that the simplified internal disciplinary procedure did not operate as a judicial adjudication attracting res judicata and that the Employment Tribunal and Employment Appeal Tribunal had been entitled to conclude that, in all the circumstances (including the seriousness of the misconduct and a change of management), it was fair to re-open disciplinary proceedings. The separate bias complaint could not be entertained on appeal without fresh evidence and permission was rightly refused.

Appeal to the Court of Appeal from the Employment Appeal Tribunal (UKEAT/0298/11/DM and UKEAT/0299/11/DM) which had dismissed the appellants' challenges to the Employment Tribunal’s findings. The Employment Tribunal had previously dismissed the appellants' unfair dismissal claims. Neutral citation of this Court of Appeal decision: [2013] EWCA Civ 178.