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Another distinction between professional disciplinary proceedings & internal disciplinary hearings

If an individual has already been charged and given a warning for misconduct in a disciplinary process, can that process later be reopened, re-run and the individual dismissed for the same charge on the same evidence?

The answer in professional disciplinary proceedings before a regulator, is “no.” (R (On the application of Coke-Wallis) v Institute of Chartered Accountants in England and Wales [2011] 2 AC 146 paras 47-51. The Supreme Court held that this principle applies irrespective of whether the regulator is exercising statutory powers or whether it is regulated by contract.

As set out below, however, the answer in the internal employment disciplinary context is “yes.”

Christou v London Borough of Haringey
  
The case of Christou v London Borough of Haringey [2013] EWCA Civ 178 concerned two senior social workers at Haringey. Following an internal investigation into the circumstances surrounding the abuse and death of Baby P both were subject to internal disciplinary proceeding and were given a written warning. Following the conviction of Baby P’s mother and boyfriend, the Secretary of State for Education commissioned a report into child safeguarding at Haringey. The report was critical of senior staff, and of the internal employment disciplinary process which had been conducted in relation to the senior social workers. The report recommended that the disciplinary proceedings were re run on the same charges. Haringey recommenced a disciplinary process against both employees, which resulted in their dismissal.

Following this second internal procedure both employees also faced hearings before the General Social Care Council, after which they were both suspended for a period.

Both employees commenced proceedings for unfair dismissal in the Employment Tribunal. One of the arguments taken was that Haringey were precluded by the doctrine of res judicata from re opening and re trying the same disciplinary charges.

This argument failed in the Tribunal, the EAT and, on 12 March 2013, in the Court of Appeal. Giving judgment for the Court, Elias LJ made a distinction between internal employment proceedings and professional disciplinary proceedings (paras 47-52).

In the employment context the disciplinary power is conferred on the employer by reason of the hierarchical nature of the relationship. The purpose of the procedures is not to allow a body independent of the parties to determine a dispute between them.” (para 48)

The doctrine of res judicata should not apply. The earlier internal employment disciplinary proceedings could not preclude Haringey from re running the same proceedings, even where there was no new evidence. The fact that there had been an earlier process which had considered the same allegations, and had not recommended dismissal, was a factor relevant to the fairness of the dismissal. It did not, however, render the dismissal unfair per se.

Trends

Kulkarni v Milton Keynes NHS Foundation Trust [2009] IRLR 829 started a trend for implying standards and legal principles from the professional disciplinary context into the employment context. In that case an employee (junior doctor) had successfully drawn on the case law under Article 6 ECHR in implying enhanced disciplinary obligations into an employment disciplinary process so as to claim a right to legal representation at the employment disciplinary hearing.

This trend in the case law was reversed by R(G) v X School [2011] ICR 1033 in which the Supreme Court by a majority held that the termination of employment by an employer could not be a determination of civil rights and obligations under Article 6 ECHR where it was also not, to all intents and purposes, decisive, of that individuals’ professional status. This line of case law has continued to be followed in cases such as Mattu v University Hospitals of Coventry and Warwickshire NHS Trust [2010] EWCA Civ 641; [2012] IRLR 661.

In Christou this current trend continues. However, this is not to say that professional disciplinary law has no role to play in the individual employment context.

– As exemplified in another Baby P case, former Director of Children’s services, R(Shoesmith) v London Borough of Haringey [2011] ICR 1195, public employers may in certain circumstances be subject to judicial review proceedings.  The day after Christou, on 13 March 2013, the Administrative Court listed Ms Shoesmith’s remedy hearing for October 2013.  At this hearing Ms Shoesmith is claiming (as alternatives) a declaration that she was not dismissed by Haringey or damages. Judicial review proceedings are only available in limited circumstances in the public employment context (R v East Berkshire Health Authority ex p Walsh [1985] 1 QB 152. However, where Judicial Review is possible, the remedies available can make this an attractive route for employees.  In Shoesmith the sum in damages claimed is greater than that the Employment Tribunal could have awarded her under the unfair dismissal damages cap.

– Where an employer has breached, or is threatening to breach a contractual entitlement to a specific disciplinary procedure, the employee may apply to the High Court for civil injunctive relief (eg. Lauffer v Barking, Havering and Redbridge University Hospitals NHS Trust [2010] Med LR 68). This route can be of particular practical benefit to an employee faced with such a breach of contract to stop the dismissal in its tracks before it occurs. It has, historically, been an attractive route of challenge for doctors, in part because the contractual disciplinary and capability procedures are especially specific, and apt for injunctive relief.

Described in Chambers and Partners 2013 as “a remarkably intelligent and articulate lawyer” having “great crossover knowledge”, Katherine’s practice spans public, employment and disciplinary/ regulatory law.

Katherine is a member of Littleton’s disciplinary and regulatory group (“DRG”). To join our DRG mailing list or subscribe for our next seminar in Manchester on 16th April.
  
Related link:  Profile of Katherine Apps
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