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Dismissals of Baby P Social Workers Fair

29th June, 2012

In what has been described as rare by the Employment Appeal Tribunal (“the EAT”), two employees have been held to be fairly dismissed following a second disciplinary procedure even though no new evidence came to light.

In Christou and another v London Borough of Haringey UKEAT/0298/11 and 0299/11, a social worker and her team manager were issued with written warnings for misconduct under the Respondent’s simplified disciplinary procedure (under which there was no power to dismiss) for their involvement in the Baby P case in 2007.

Following Baby P’s death, the then Secretary of State for Children Schools and Families directed the Respondent to appoint an interim Director of Children’s Services and confirmed that he required the interim Director to consider staffing issues arising from the case.  Following a second disciplinary procedure, the social worker and her team manager were dismissed for gross misconduct under the Respondent’s full procedure (rather than the simplified disciplinary procedure).

Both employees appealed the decision but the dismissals were upheld.  They brought claims of unfair dismissal in an employment tribunal.  The employment tribunal held that dismissals relating to failure to maintain required visiting frequency (in relation to the social worker) and poor professional judgement with regards to the absence of Baby P’s mother (in relation to both employees), were within the range of reasonable responses.  The majority of the employment tribunal held that a second disciplinary process was appropriate due to the risk to members of the public, the fact that the new management took a different view about the seriousness of the matters involved and also because they viewed the first disciplinary action inadequate.  Despite there being two disciplinary procedures, the employment tribunal held that dismissals were not res judicata.  The employees appealed the decision.

The EAT dismissed the appeals and held that the employment tribunal, by concluding that the dismissals were within the range of reasonable responses of a reasonable employer, addressed the appropriate question of law and reached a conclusion open to it on the evidence.  It went on to hold that all required elements for a dismissal for misconduct were satisfied and that the dismissals were fair.  As to the res judicata issue, the EAT held that the written warning under the simplified disciplinary procedure was not “judicial” and so did not prevent a second disciplinary action.

The EAT did state that “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.”

Employers should therefore take great care if they were to rely on this case to discipline an employee for a second time for the same issue where no new evidence has come to light.

If you require assistance as to the approach to be taken in a similar situation or need advice on disciplinary procedures generally, please do not hesitate to contact Susie Allen in the Employment team at [email protected] or on 01244 405598.

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