Court of Appeal rejects unfair dismissal claim by Baby P social workers

The Court of Appeal has rejected a claim by two social workers that they were dismissed unfairly by Haringey Council in the aftermath of the Baby P case.

Gillie Christou, a team leader, and Maria Ward had been found to be at fault in the way that they had dealt with Baby Peter, who died at the age of 17 months as a result of a chronic lack of care and abuse by her mother and two men.

Prior to the criminal trial and the conviction of the mother and the two men, Christou and Ward had been disciplined under Haringey’s simplified disciplinary procedure and given a written warning.

However, a subsequent report commissioned by the council’s new Director of Children’s Services suggested that the original disciplinary proceedings had been “blatantly unsafe, unsound and inadequate”. It suggested five disciplinary charges that the author, himself an experienced director of children’s services, felt justified further consideration.

As a result, fresh disciplinary proceedings were brought against Christou and Ward and they were summarily dismissed for gross misconduct.

Before the Employment Tribunal the social workers put forward a number of grounds as to why their dismissals were unfair. The primary one was that it was unfair to subject them to a second disciplinary process at all.

However, both the tribunal and the Employment Appeal Tribunal rejected their arguments.

In Christou & Anor v London Borough of Haringey [2013] EWCA Civ 178 counsel for Christou and Ward put forward a number of strands to their arguments on double jeopardy before the Court of Appeal.

These were that:

• the doctrine of res judicata applied so as to bar the second disciplinary process. This was because essentially the same charges had been advanced in the second more formal procedure as had been relied upon in the simplified procedure, with no fresh evidence. This gave 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 was inevitably unfair.
• There was no general public interest exception which could modify the strict application of the res judicata doctrine so as to justify reopening disciplinary matters which have already been determined. Accordingly, if the first decision was res judicata, that was the end of the matter even if the court considered that the allegations against these appellants raised public interest concerns which the first procedure had not properly recognised or embraced.
• It was an abuse of process to subject these appellants to a second set of procedures. The parties had expressly agreed to the use of the simplified procedure – it could not be used otherwise – and the appellants had waived their rights to appeal the sanction imposed; it was an abuse to undermine that agreement.
• Even if a second bite of the cherry was in principle legitimate, the majority of the EAT failed to give adequate or cogent reasons why it was fair to allow the matter to be re-opened in the circumstances of this case. In particular, they made the error of inferring that Haringey must have been justified in re-opening the matter because their conclusion that the acts of misconduct justified summary dismissal demonstrated that the simplified procedure was inadequate. This was circular and unacceptable reasoning.

However, giving the judgment of the court, Lord Justice Elias rejected these arguments.

The judge said it was wrong to describe the exercise of disciplinary power by the employer in the simplified procedure as a form of adjudication. “It is far removed from the process of litigation or adjudication, which is in essence where this doctrine [of res judicata] bites.”

Lord Justice Elias concluded that the doctrine was inapplicable in this case, although he added that he was not saying that it could never apply between employer and employee.

On the related doctrine of abuse of process, the judge acknowledged that the factual substratum was the same for all the charges, but said the particular focus in the second proceedings was very different.

He added that he did not think that the doctrine of abuse of process was strictly applicable in a case of this kind, any more than the doctrine of res judicata.

Lord Justice Elias also said that in his judgment, there was a proper and sufficient basis for the majority’s conclusion that the dismissals were fair notwithstanding that the double jeopardy principle was infringed.

Christou also alleged bias, arguing that evidenced adduced before the tribunal demonstrated that one of the councillors hearing her appeal was either biased or gave the impression of being biased. But this was again rejected by the Court of Appeal.

Commenting on the judgment, a Haringey Council spokesman said: “We welcome today’s ruling by the Court of Appeal.  Ms Ward and Mrs Christou were dismissed from Haringey Council for gross misconduct.  Both the original employment tribunal and the Court of Appeal have agreed that our decision to end their employment was fair."