A second bite at the cherry?


John Barker examines the case of GILLIE CHRISTOU AND MARIA WARD V LONDON BOROUGH OF HARINGEY (2013) EWCA Civ 178; authority for the principle that in some cases disciplinary action by an employer is not effective as an adjudication meaning that further proceedings can be brought on the same grounds.

John Barker has been in practice as a barrister for over thirty years and appears in all levels of Court in Criminal and Regulatory matters. John is a member of the Association of Regulatory and Disciplinary Lawyers and has been appointed to sit as a Legal Assessor to The Royal Pharmaceutical Society of Great Britain, The General Osteopathic Council, The Association of Accounting Technicians and The Market Research Society.

Should you wish to speak about the issues in this article please contact John Barker at our office who leads our Professional Discipline Department"

Case summary by John Barker

  1. On 12th March 2013 the Court of Appeal (Civil Division) comprising Lord Justice Laws, Lord Justice Elias and Lord Justice McCombe passed judgment on this appeal from the Employment Appeal Tribunal.
  2. The Appellants were social workers employed by Haringey Council who were found to be at fault in the way they handled the case of Baby P, a baby who had tragically died as a result of chronic lack of care and abuse by her mother and two men. This 17 month old baby was at the time subject to a child protection plan devised by the Council and was on the child protection register. Mrs Christou (C) was a team leader responsible for a number of social workers, including Ms Ward (W) who had specific responsibility for Baby P.
  3. Prior to a criminal trial the first disciplinary proceedings under the Council’s simplified disciplinary procedure took place and the Appellants were given a written warning. This procedure was for relatively minor breaches of conduct where the likely sanction is a verbal or written warning. Both parties must agree to this procedure being adopted and the employee is not entitled to appeal any warning imposed.
  4. Following the above simplified procedures the criminal proceedings took place. The mother pleaded guilty to causing or allowing Baby P’s death and the men were subsequently convicted of the same following a trial.
  5. Extensive media reporting and criticism of the social services at Haringey occurred.
  6. The day following the trial, The Rt Hon Mr Ed Balls MP, the Secretary of State for Education, commissioned a report into safeguarding arrangements for children in Haringey. The report was highly critical of those arrangements and identified a number of serious concerns. Paul Fallon, a Director of Children’s Services, was appointed to consider whether the disciplinary action taken against the Appellants was sufficient in light of all the evidence now available, and to advise whether sufficient grounds existed to warrant further or separate disciplinary proceedings.
  7. Mr. Fallon’s conclusion was that different decisions and actions should have been taken in P’s case and if they had been, in all probability the outcome would have been different. He described the original disciplinary proceedings as “blatantly unsafe, unsound and inadequate.”
  8. Consequently there was a second set of disciplinary proceedings against both Appellants. Both the Appellants were summarily dismissed for gross misconduct. There was an appeal which took the form of a rehearing before a Panel of councillors (separate hearings for C and W) which confirmed the decision to summarily dismiss.
  9. Both Appellants brought proceedings before the Employment Tribunal for unfair dismissal: the principal submission was that it was unfair to subject them to a second disciplinary at all. The Employment Tribunal rejected all points and found that the dismissals were fair.
  10. There was an unsuccessful appeal to the Employment Appeal Tribunal before Mrs Justice Slade who sat with lay members. At that appeal the double jeopardy argument advanced at the Employment Tribunal was put in a different and more nuanced way. It was put on the basis that the the doctrine of res judicata applied to the simplified procedure with the effect that the Council were stopped as a matter of law from reopening the disciplinary process at all and that the dismissals were thus necessarily unfair. This submission was rejected by the EAT which held that the simplified procedure did not constitute an adjudication between the parties so as to engage the res judicata doctrine.

The Appeal at the Court of Appeal

  1. That decision was the main point of appeal in the Court of Appeal. Lord Justice Elias gave judgment (no dissenting judgments).
  2. Lord Justice Elias: “...it is wrong to describe the exercise of disciplinary power by the employer as a form of adjudication. The purpose of the procedure is not ‘a determination of any issue which establishes the existence of a legal right’”. He said to “nor is it properly regarded as ‘determining a dispute.’”
  3. Lord Justice Elias continued: “the fact that the simplified procedure is so far removed from any kind of adjudicative process reinforces the conclusion that the doctrine of res judicata is inapplicable here”.
  4. Lord Justice Elias also stated that the doctrine of abuse of process was not strictly applicable in a case of this kind.

Should you wish to speak about the issues in this article please contact John Barker at our office.

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