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Employees can be disciplined twice for the same offence- 19/06/2012
Employees can be now disciplined twice for the same offence, if employers feel that the first punishment did not fit, according to a leading Shropshire employment lawyer.
Charlotte Charlesworth-Jones, an employment solicitor at Shropshire law firm FBC Manby Bowdler LLP, says that an Employment Appeal Tribunal (EAT) decision means that under exceptional circumstances employers can now put an employee through a second disciplinary procedure for the same offence.
“This ruling that there is no concept of ‘double jeopardy’ in internal disciplinary cases will be especially useful for a new management team which takes over and finds out that the out-going team did not discipline errant employees sufficiently,” says Mrs Charlesworth-Jones, who is based in FBC Manby Bowdler’s Shrewsbury office.
The case determined by the Employment Appeal Tribunal was Christou & Ward v Haringey, which stemmed from the death of Baby P in 2007.
Ms Ward was the social worker responsible for Baby P. Ms Christou was her supervisor, whom Sharon Shoesmith promised would not lose her job over the death of Baby P. Both employees were put through Haringey's 'Simplified Disciplinary Procedure'. The maximum penalty under the Simplified Disciplinary Procedure was a written warning, which they both duly received.
Subsequently, after the media storm, the OFSTED inspection and the sacking of Sharon Shoesmith, the new regime at Haringey commenced a second set of disciplinary proceedings against them arising out of the same facts. They were dismissed. They argued that it was legally impermissible, or simply unfair, to dismiss based upon a disciplinary offence for which they had already been sanctioned.
The EAT upheld the decision of the employment tribunal that the dismissals were not unfair. It held there was no concept of 'double jeopardy' or 'res judicata' in internal disciplinary proceedings. It held that while it would be unusual for a second set of disciplinary proceedings to follow a first set arising out of the same facts, this was a 'rare' case and the tribunal was entitled to hold that the employer's actions were fair in the light of the media spotlight and the new management regime which took a different view of the seriousness of the employees' conduct.
“We advise that when relying on a case that the EAT regards as rare that employers contact us for legal advice first. Nonetheless this is an important case for the rights of employers to insist on proper sanctions for errant employees,” says Mrs Charlesworth-Jones.