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Can an employer discipline twice for the same offence?

Yes it can, the EAT has held, but only in very exceptional circumstances. Christou & Ward v Haringey arose out of the tragic death of Baby P in London in 2007. Ms Ward was the social worker at Haringey Council responsible for the care of Baby P and Mrs Christou was the team manager. They were put through the Council’s ‘Simplified Disciplinary Procedure’, the maximum penalty under which was a final written warning. However, following the introduction of new management and the media attention surrounding the situation, the Council carried out a second disciplinary procedure. Both employees were dismissed.

The EAT stated that there is no rule of ‘double jeopardy’ in internal disciplinary proceedings preventing an employee from being put through a second disciplinary process based on the same facts. Previous disciplinary proceedings are one of the considerations to be taken into account when deciding whether the decision to dismiss was fair, and will not necessarily make the decision fair or unfair.

The EAT held that the dismissals were fair, deciding that the fairness of putting the employees through the second disciplinary process should be assessed in light of the employer’s reason for doing so. Here the reason was that new management considered the actions of the employees to be considerably more serious than the sanctions imposed under the first proceedings. The Employment Tribunal had also stated that where there is a risk to the public, second disciplinary proceedings can be justified.

This contrasts with the 2010 decision of Sarkar v West London Mental Health NHS Trust, where a doctor was unfairly dismissed following a second disciplinary procedure based on the same facts. The EAT in Christou stated that each case will depend on the specific facts, and Sarkar does not create a rule that dismissals arising out of second disciplinary proceedings will be unfair. However, the EAT emphasised that these were unusual facts, and it will very rarely be fair to discipline twice for the same offence. The case should therefore be treated with caution.

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