Unfair dismissal – Determination whether procedure fair or unfair – Procedure relating to dismissal

Christou and another v Haringey London Borough: Court of Appeal, Civil Division: 12 March 2013

In the instant appeal, the employees had both been social workers employed by the employer local authority. They had been found to be at fault in the way in which they had dealt with the case of 'Baby P', a baby who had died at the age of 17 months as a result of a chronic lack of care and abuse displayed by his mother and two men. The child had, at the time, been subject to a child protection plan devised by the employer and had been on the child protection register.

The first employee, C, had been a team leader responsible for a number of social workers, including the second employee, W. The latter had had specific responsibility for Baby P. The employees had been disciplined under the employer’s simplified disciplinary procedure and given a written warning. Following the conviction of the perpetrators of the abuse, the secretary of state for education issued a direction that required the employer to appoint J to the statutory position of Director of Children’s Services. The secretary of state instructed J to consider staffing issues that had arisen from the Baby P case. That investigation included an examination of the role played by social service staff, including the employees, notwithstanding that they had already been disciplined. The report concluded that the original disciplinary proceedings had been blatantly unsafe, unsound and inadequate.

Five disciplinary charges were identified which it was considered merited further consideration with regard to the employee’s conduct. Consequently, fresh disciplinary proceedings were instituted against the employees. In W’s case, no new facts had been relied upon, but the charges were directed at alleged failings of substance rather than the procedural complaints which had formed the basis of the charges in the simplified procedure. C raised as a defence the fact that she had already been subject to disciplinary charges. The employer accepted that it was highly unusual to re-open proceedings, but stated that the previous disciplinary process had been seriously flawed, that it would be unreasonable not to consider such serious allegations, and that the second proceedings raised different grounds of complaint than the original proceedings had done. Both employees were summarily dismissed for gross misconduct. The employees' appeals were unsuccessful.

The employees appealed to the employment tribunal (the tribunal) contending, inter alia, that it had been unfair to subject them to a second disciplinary process. The tribunal were unanimous in recognising that there would be circumstances where it would be appropriate to re-open a case, such as where new information arose, or if there was fraud or corruption, but they were divided as to whether it was fair to do so in the circumstances of the instant case. The majority considered that it was fair but one member dissented on the point. The tribunal dismissed the employees' appeals, finding that the dismissals had been fair, notwithstanding that they had involved re-opening the earlier determinations. The employees appealed to the Employment Appeal Tribunal (the EAT).

They submitted that the doctrine of res judicata had applied to the simplified procedure with the effect that the employer had been estopped as a matter of law from reopening the disciplinary process at all so that the dismissals had necessarily been unfair. The EAT rejected that submission and held, after considering established authority, that the simplified procedure had not constituted an adjudication between the parties so as to have engaged the res judicata doctrine. Further, the employees submitted that conducting the second procedure had constituted an abuse of process. All the charges which had been relied upon at the second procedure ought to have been made, if they were going to be made, as part of the initial disciplinary process, and it had been abusive not to do so. The EAT did not accept that that doctrine was applicable either; the simplified procedure had not constituted litigation so as to have founded a relevant 'process' for the purposes of the doctrine. The EAT upheld the tribunal's decision. The employees appealed.

They submitted, first, that the doctrine of res judicata had applied so as to have barred the second disciplinary process, because essentially the same charges had been advanced in the second procedure as had been relied upon in the simplified procedure, with no fresh evidence. That had given rise to a cause of action estoppel. Since the second procedure ought not to have taken place, it should be ignored and it followed that the dismissal had been unfair. Under established principles, there was no general public interest exception which modified the strict application of the res judicata doctrine so as to justify reopening disciplinary matters which had already been determined.

Accordingly, if the first decision had been res judicata, that was the end of the matter even if the court considered that the allegations against the employees raised public interest concerns which the first procedure had not properly recognised or embraced. Secondly, they submitted that it had been an abuse of process to have subjected them to a second set of procedures. Whilst that doctrine did not create an absolute barrier to cases being reopened, they submitted that it ought to have precluded it in the instant case. The parties had expressly agreed to the use of the simplified procedure and the employees had waived their rights to appeal the sanction imposed; therefore, it had been an abuse to undermine that agreement. The appeal would be dismissed.

(1) In the employment context the disciplinary power was conferred on the employer by reason of the hierarchical nature of the relationship. The purpose of the procedures was not to allow a body independent of the parties to determine a dispute between them. Typically it was to enable the employer to inform himself whether the employee had acted in breach of contract or in some other inappropriate way and if so, to determine how that should affect future relations between them. It was true that sometimes (but by no means always) the procedures would have been contractually agreed, but that did not alter their basic function or purpose. The employer had a duty to act fairly and procedures were designed to achieve that objective. The degree of formality of those procedures would vary enormously from employer to employer.

However, even where they provided a panoply of safeguards of a kind typically found in adjudicative bodies, as was sometimes the case in the public sector in particular, that did not alter their basic function. It was far removed from the process of litigation or adjudication, which was, in essence, where the doctrine of res judicata bit. If a process was judicial and gave rise to a binding adjudication, it involved determining rights in the same way as a court did. That was not what an employer was doing. That was not to say that the doctrine of res judicata could never apply between employer and employee. The critical question was not the formality of the procedures, but rather whether they operated independently of the parties such that it was appropriate to describe their function as an adjudication between the parties (see [47], [48], [50], [51] of the judgment).

In the instant case, the fact that the simplified procedure was so far removed from any kind of adjudicative process reinforced the conclusion that the doctrine of res judicata was inapplicable (see [52], [71], [72] of the judgment). Mattu v University Hospitals of Coventry and Warwickshire NHS Trust [2012] 4 All ER 359 applied; R (on the application of Coke-Wallis) v Institute of Chartered Accountants in England and Wales [2011] 2 All ER 1 distinguished; New Brunswick Rly Co v British and French Trust Corpn Ltd [1938] 4 All ER 747 considered; Thrasyvoulou v Secretary of State for the Environment, Oliver v Secretary of State for the Environment [1990] 1 All ER 65 considered.

(2) Even if the doctrine of abuse of process were applicable, it did not provide an automatic bar to a second disciplinary process provided that it would not be abusive or oppressive to take that step. Moreover, the burden was on the party asserting abuse of process to establish it. The instant case was not one where the court had already decided the matter. It was true that the factual substratum had been the same for all the charges against the employees, but the particular focus of complaint in the second proceedings was very different. Indeed, it was precisely because they were different, the first proceedings focusing on procedural errors and the second concentrating much more firmly on substantive errors of judgment and breaches of the care plan, that the employer had considered that it had been justified to institute fresh proceedings.

When a tribunal was considering whether the dismissal was fair, it would perforce have to ask itself, as the tribunal had, whether it had been fair to institute the second proceedings at all. That was essentially the same question as whether it was an abuse of process to reopen the matter. It was difficult to conceive of a case where a tribunal could consider that it was an abuse of process but was nonetheless fair. Indeed, since the onus was on the employer to establish that a dismissal was fair, whilst it would be on the employee to show abuse of process, the unfair dismissal test was, if anything, more favourable to the employee (see [54]-[56], [71], [72] of the judgment).

Johnson v Gore Wood & Co (a firm) [2001] 1 All ER 481 applied; Henderson v Henderson [1843-60] All ER Rep 378 applied. Decision of the Employment Appeal Tribunal UKEAT/0298/11/DM UKEAT/0299/11/DM affirmed.

Karon Monaghan QC and Richard O'Dair (instructed by Neumans LLP) for the employees; Bruce Carr QC (instructed by London Borough of Haringey Corporate Legal Services) for the employer.