Re-hearing Of Internal Disciplinary Proceedings

Where an employer has already dealt with a disciplinary matter and issued a sanction, can those disciplinary proceedings be re-opened and a different sanction imposed?

In the case of Christou v London Borough of Haringey [2013] WLR(D) 97 the Court of Appeal rejected an argument that the employer was prevented from doing this by the legal doctrines of res judicata  (i.e. that the dispute had already been adjudicated upon) and abuse of process.

The Court of Appeal said that "it is wrong to describe the exercise of disciplinary power by the employer as a form of adjudication" and held that the purpose of disciplinary procedure is not "a determination of any issue which establishes the existence of a legal right", nor does it determine a dispute. The critical question was whether the procedures "operate independently of the parties such that it is appropriate to describe their function as an adjudication between the parties".   

The Claimants were social workers involved in the tragic Baby P case, in which a baby died as a result of abuse. The Claimants were social workers responsible for Baby P and employed by Haringey Council. They were disciplined under the Council's simplified disciplinary procedure which required the consent of both parties, with the employee not being able to appeal the outcome. It was designed for relatively minor offences. The Claimants were initially given a written warning following this disciplinary procedure.

However, following extensive media coverage, a review of the case was instigated by the Government which found the original disciplinary proceedings to have been "blatantly unsafe, unsound and inadequate", and after further investigation fresh disciplinary proceedings were instituted.   It was appreciated that the Claimants were likely to feel aggrieved about this, because the further investigations were into matters known at the time of the original investigations, but the investigators considered that those proceedings were “so indicative of flawed judgment that they cannot be allowed to pass."

As a result of the fresh disciplinary proceedings, the Claimants were summarily dismissed, and they sued for unfair dismissal.  The main argument relied on by the Claimants was that the doctrine of res judicata prevented the re-opening of a matter where a decision has already been pronounced by a judge or other tribunal with jurisdiction but the Court of Appeal held that these legal concepts do not  apply to internal disciplinary proceedings.  The claims for unfair dismissal were rejected.

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