The tragic death of Baby P almost five years ago resulted in a number of high profile dismissals and, subsequently, employment tribunal claims. Comment from Mike Tremeer, Solicitor Fladgate LLP.

In the latest of these, the Employment Appeal Tribunal (EAT) has considered the fairness of the dismissals of the Council case worker responsible for Baby P’s care, and her manager, one year after both employees were issued with written warnings only in relation to their handling of Baby P’s case. At the time of his death, Baby P was on the Council’s child protection register and subject to a child protection plan under which he was due to be seen by Ms Ward, the case worker assigned to him, every 14 days. Ms Ward saw Baby P on 1 June 2007 and observed that he was bruised. However, he was not seen at any time between 19 June 2007 and 11 July 2007, and he died on 3 August 2007, having suffered serious injuries.

Following the death, the Council’s Local Safeguarding Children Board carried out a review of Baby P’s care. This led to both Ms Ward, and her manager Mrs Christou, being investigated by the Council using their Simplified Disciplinary Process (SDP) – a shortened disciplinary procedure under which the maximum sanction was a written warning. The employees both received written warnings in April and May 2008 respectively. In November 2008, two men were convicted of causing or allowing Baby P’s death, with his mother having already pleaded guilty to the same offence. The decision received much media and political attention, with the Secretary of State directing the Council to consider “staffing issues” arising from the case. This led to the new senior management team in place at the Council suspending both Ms Ward and Mrs Christou and instigating a second – and this time, full – disciplinary process, on the basis that the original written warnings awarded were insufficient. Both employees were subsequently dismissed for gross misconduct in April 2009 – more than 18 months after the relevant events, and one year after they were first given written warnings.

Both employees claimed unfair dismissal, stating that media and political pressure, rather than their conduct, was the real reason for their dismissal, and that carrying out a second disciplinary process, having already been issued with written warnings, was unfair. By a majority of two to one, the employment tribunal found that the dismissals were fair. Whilst a number of motives for the dismissals were identified, including media and political pressure, the tribunal was satisfied that the primary reason for them was the employees’ conduct. The tribunal also considered that the decision to discipline the employees twice, and to significantly increase the sanction awarded, fell within the range of reasonable responses of employers in the circumstances, meaning that they were fair.

The employees appealed to the EAT on two grounds – that the Council were not entitled to dismiss or commence a second disciplinary process as the events relied upon had already been investigated and sanctions issued (in accordance with the legal principle of “res judicata”, also known as “double jeopardy”), and that, even if they were not prevented from commencing the second disciplinary proceedings, the tribunal’s finding that the decision to do so was reasonable was perverse. The EAT upheld the tribunal’s finding and confirmed that the principle of res judicata applies to decisions that are “judicial in the relevant sense” and not to internal disciplinary investigations such as this. Further, the EAT did not agree that the tribunal’s finding that the Council had acted reasonably in conducting a second disciplinary process was perverse. The EAT confirmed that, in the absence of any new evidence or information, such a retrial would be considered reasonable only very rarely, but that this was such a case, given the serious allegations and exceptional consequences involved. As the EAT stressed, situations in which an employer is entitled to discipline twice for the same events, especially where the disciplinary sanction is upgraded, are likely to be the exception rather than the norm. The level of media and political coverage that followed Baby P’s death is also unlikely to be repeated in the vast majority of disciplinary situations. However, this case does confirm that if new management teams, or more senior levels of management, become aware of events or additional facts after a disciplinary process has been completed, it may be permissible for a second disciplinary process to take place, and even for the sanction awarded to be increased. [Christou and another v London Borough of Haringey UKEAT/0298/11 and 0299/11]