Tribunal Tales – Double Jeopardy

This case arose out of the tragic events surrounding Baby P. Following his death, the Council social worker responsible for his care was assured by Sharon Shoesmith that she would not be losing her job as a result. Both the social worker and her supervisor were taken through a disciplinary procedure which resulted in both employees receiving a written warning for misconduct. This was the maximum punishment which the Council could dish out under the particular disciplinary procedure it had chosen to follow.

However, following the media outcry which accompanied the reporting of the murder trial, the Council were pressured into re-visiting their decision. It decided that certain further matters could be investigated arising out of the same facts which had given rise to the initial disciplinary hearings. As a result, further allegations were levelled against the employees and they were ultimately dismissed for gross misconduct.

The employment tribunal held (by a majority) that the dismissals were fair. In their view, the Council were entitled to re-visit their original decision and this did not render the dismissals unfair. The Employment Appeal Tribunal agreed. While it acknowledged that it was unusual for a second disciplinary hearing to ‘trump’ an initial hearing on the same set of facts, in the exceptional circumstances of this case it was justified. In light of the media and political pressure exerted on the Council, and the tragic results of the failures of the employees concerned, the dismissals were not unfair.

Employers should not take this as a green light to hike up disciplinary sanctions already imposed. Normally, an attempt to do so will be unfair and could give rise to liability for unfair dismissal or possibly constructive dismissal. But this case does indicate that, strictly speaking, there is no double jeopardy rule in play in disciplinary proceedings.

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