No double jeopardy rule for employees

The question of whether an employee can be put through a second disciplinary procedure in relation to the same allegation was considered by the Employment Appeal Tribunal (EAT) in Christou & Ward v Haringey. 

The EAT said that an employer could fairly do so in exceptional circumstances.

The case related to the death of Baby P in 2007.

Ms Ward was the social worker responsible for Baby P and Ms Christou was her supervisor.  Both employees originally received a written warning which was the maximum they could receive under Haringey’s “simplified disciplinary procedure”.

Following Children’s Services Director Sharon Shoesmith’s dismissal, an OFSTED inspection and the media attention, the new regime at Haringey chose to commence a second set of disciplinary proceedings against Ms Ward and Ms Christou on the basis of the same facts and allegations.

This time they were both dismissed and argued that it was unfair or impermissible to be dismissed in relation to a disciplinary offence for which they had already received a sanction.

The Employment Tribunal found that the dismissals were fair and the EAT agreed with this decision.   The EAT confirmed that there was no “double jeopardy” concept in relation to internal disciplinary proceedings.  Whilst it would be unusual to have a second set of proceedings arising from the same facts, this was a rare case.  Given the media attention and the new management’s view of the seriousness of the conduct, the Tribunal was entitled to find that the dismissals were fair.

Our view

This type of scenario will be rare.  It is a reminder, however, that employers should consider carefully the seriousness of allegations prior to a disciplinary and if dismissal is a possible outcome, the employee should be advised of this in the invitation letter.