Can you have a second bite at the disciplinary cherry?
19th June 2012
From time to time this is a conundrum for employers. You have a disciplinary process culminating in a disciplinary hearing, deliver a punishment and move on. Then you reflect, possibly in the light of new evidence, and think you have been too lenient. Is there anything you can do?
Normally, and especially without there being any new evidence, the answer is no. Concepts such as “estoppel”, “double jeopardy” and “abuse of process” (quite apart from fairness) prevent you from doing so.
However, the EAT’s decision handed down at the end of last month in another of the “Baby P” cases does seem to indicate there can be circumstances when that may not be right.
Admittedly the background facts were exceptional. The fall-out from the tragic death of Baby P on 3 August 2007 had been intense. Media furore had erupted after the trial, in which the baby’s mother and two other members of her family were convicted. There was then the debacle over the finding of the Court of Appeal that the process by which Sharon Shoosmith, the Director of Children’s Services at the London Borough of Haringey, had been dismissed, was defective. Now it was the turn of the Social Worker responsible for Baby P and her supervisor to complain that they had been unfairly dismissed. This was on the basis that they had been tried via the Local Authority’s “Simplified Disciplinary Procedure” and each been given a written warning to remain live for 12 months. Thereafter, they had been re-tried by a second disciplinary enquiry, and this time been found guilty of gross misconduct and promptly summarily dismissed.
Many might have predicted that was not going to be procedurally possible. But in fact the Employment Tribunal (by a majority, it has to be said) held that where there was a risk to members of the public, an employer would be entitled to bring a second disciplinary action. The EAT has now agreed with that approach. The EAT got around some of the arguments that you might think would have caused some difficulty holding, for example, that the Local Authority’s “Simplified Disciplinary Procedure” was not in fact an adjudication of a dispute such as to be “judicial” in that sense. They also did not consider the second proceedings were an abuse of process, on the basis that internal disciplinary proceedings were not, in litigation terms, a “process” for this principle.
The EAT did stress that the circumstances in which it can be held to be reasonable for an employer to change its view and to embark on a second round of disciplinary proceedings on the same facts, were likely to be “extremely rare”.
So despite this case, the advice for employers must still be to ensure they have thoroughly investigated a particular case before proceeding to a disciplinary hearing. That is harder than it sounds, as they rightly and understandably often feel under much pressure to comply within the time frame envisaged by their disciplinary procedure. However, it can be very difficult, if, after a decision has been reached and a punishment delivered, further evidence comes to light such that the company or organisation feels it had delivered a disproportionately light punishment. This is particularly the case when new “facts” have come out, which in truth through more careful enquiry could well have been made at an earlier stage, or there had been sufficient time available to obtain it.