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Employers Can Discipline Employees Twice for Same Misconduct

Extremely Rare’ For An Employer To Be Entitled To Worsen A Disciplinary Sanction After It Has Been Imposed – Christou and Ward v. London Borough of Haringey UKEAT/0298/11/DM UKEAT/0299/11/DM

The Employment Appeal Tribunal (‘EAT’) held that legalistic concepts of ‘abuse of process’, ‘double-jeopardy’ and ‘issue estoppel’ have no application in the context of an employer which instigates a second set of disciplinary proceedings arising from the same set of facts which led to a first disciplinary that has not resulted in an employee’s dismissal. Here the issue was whether a dismissal was unfair when employees in the Baby ‘P’ case had initially been issued with final written warnings. The EAT held that the dismissal was not unfair because the second proceedings albeit based on the same facts reflected fresh investigation of the evidence that affected the employer’s view of the gravity of the disciplinary offences. However, the EAT was quick to add that “There is no rule of law which establishes that it will be fair to take such proceedings if the first disciplinary proceedings are shown to be inadequate or that they came about after a change of management.” The circumstances in which it is appropriate for this to occur are likely to be “extremely rare”. Equally, however, “[c] onversely there is no rule of law that dismissal following second disciplinary proceedings brought on the same facts as had been relied upon in a procedure appropriate for misconduct of a minor nature would be unfair. In each case the fact that a view had previously been taken by an employer that the misconduct was not serious and was to be dealt with under a procedure which could not lead to dismissal is to be taken into account in determining the fairness of the dismissal. …. [t] he fairness of taking [an employee] through the second disciplinary procedure [should be] assessed in the light of the [employer’s] reason for doing so.”

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