Christou & Anor v London Borough of Haringey

Ordinary internal disciplinary procedures, including contractual procedures, do not ordinarily determine a dispute independently between employer and employee. They are therefore not adjudications capable of giving rise to res judicata. The same is generally true of the related Henderson abuse-of-process doctrine.

A second disciplinary process is nevertheless relevant to fairness. Under section 98 of the Employment Rights Act 1996, a tribunal must assess all the circumstances. A procedurally improper or repeated process does not automatically make a resulting dismissal unfair. Serious misconduct creating a public risk, and a genuinely inadequate first process which could not consider dismissal, may justify reopening matters despite double jeopardy.

Two local-authority social workers had received written warnings under a simplified disciplinary procedure concerning their handling of the case of Baby P. After a later external review and a change in senior management, the authority instituted fresh proceedings based on the same factual background but alleging substantive failures of professional judgment and breaches of the child-protection plan. Each employee was summarily dismissed for gross misconduct following a rehearing appeal.

The Employment Tribunal dismissed their unfair-dismissal claims. Its majority held that reopening the disciplinary matters was fair; one lay member dissented. The Employment Appeal Tribunal dismissed the employees’ appeals, holding that neither res judicata nor abuse of process applied to the simplified procedure.

The appeals raised whether the earlier internal disciplinary outcome barred, or made unfair, the later disciplinary process and dismissals.

1. The appeals were dismissed. The court held that the simplified internal disciplinary procedure did not give rise to res judicata. An employer exercising disciplinary power is not an independent body adjudicating a dispute between the parties. It is investigating whether the employee has acted improperly and deciding the contractual consequences for the employment relationship. That remains so even if the procedure is contractual and contains substantial procedural safeguards. The simplified procedure was, in any event, especially remote from adjudication.

2. The related Henderson abuse-of-process principle was likewise not strictly applicable to this non-adjudicative setting. In an unfair-dismissal claim, however, the tribunal must determine whether it was fair for the employer to institute fresh proceedings. That inquiry substantially addresses the practical concern underlying an allegation of abuse or double jeopardy.

3. The court accepted that the Employment Tribunal’s inference that the original process was inadequate simply because dismissal was later within the range of reasonable responses was illogical. A reasonable dismissal does not necessarily mean that a lesser initial sanction was unreasonable. But that error was not material. The first procedure did not permit dismissal to be considered despite potentially grave misconduct, and the majority had given sufficient independent reasons for reopening the matter: the allegations involved a serious risk to a member of the public and new management could reasonably take a different view of their gravity.

4. Even if res judicata had applied, a dismissal following a second process would not inevitably be unfair. Section 98 of the Employment Rights Act 1996 still requires an assessment of the employer’s reason and of fairness in all the circumstances. The breach would be highly relevant, but not conclusively determinative.

5. The renewed application for permission to appeal on alleged bias was also refused. The point had not been advanced below and its resolution might have required evidence from the councillor concerned. It was not an exceptional case in which the point should be raised for the first time on appeal.

• Court of Appeal (Civil Division): The appeals from the Employment Appeal Tribunal were dismissed and the renewed permission application on bias was refused: [2013] EWCA Civ 178.
• Employment Appeal Tribunal: The employees’ appeals were dismissed. The EAT held that the simplified disciplinary procedure was not an adjudication capable of engaging res judicata, and that abuse of process did not apply: UKEAT/0298/11/DM; UKEAT/0299/11/DM.
• Employment Tribunal: The unfair-dismissal claims were dismissed. The majority held that reopening the disciplinary matters and the resulting dismissals were fair.