Dismissing employees – what standard must local authorities reach?

Two Court of Appeal employment law cases highlight the distinction between the judicial process and internal disciplinary procedures. Andrew McDonald analyses the rulings.

Disciplinary proceedings can often feel like a gruelling trial for employees and employers alike. There are strict rules on procedural propriety and fairness, and decisions cannot be made unlawfully.

As two recent Court of Appeal cases show, however, there is a real and important distinction between the judicial process, on the one hand, and internal disciplinary procedures, on the other.

Issues

Christou and Anor v London Borough of Haringey

The first case, Christou, related to two social workers and the now infamous case of Baby P, who died following serious lack of care by his mother and two men. The case was the subject of high-profile press scrutiny, and a high degree of public outrage.

Initially, the two claimants were disciplined under Haringey Council’s simplified disciplinary procedure, under which they could not be dismissed. Both claimants were given written warnings, but allowed to continue in their jobs. Following the public outrage, however, the Secretary of State for Education (then Ed Balls) commissioned a report into arrangements at the council. The report concluded that the disciplinary proceedings against the claimants had been "blatantly unsafe, unsound and inadequate", and suggested further action.

Following this report, the council began new disciplinary proceedings on the basis that the previous disciplinary process was seriously flawed. At the end of the fresh proceedings, both claimants were dismissed, and both subsequently brought unfair dismissal claims.

The claimants had their claim dismissed by the Employment Tribunal, and their appeals were then dismissed by the Employment Appeal Tribunal and the Court of Appeal in turn. The arguments focused on two issues. First, whether the judicial doctrine of res judicata (whereby an issue cannot be relitigated if it has already been decided) applied to disciplinary proceedings.

The Court of Appeal held that the critical question was whether the decision-maker operated independently of the parties, as an adjudicator. The exercise by an employer of its disciplinary power was hierarchical in nature, and not independent or adjudicative. Disciplinary proceedings are not, therefore, ‘judicial proceedings’.

The second issue was whether subjecting the claimants to a second disciplinary process had been an ‘abuse of process’. Again, the court found that the doctrine of abuse of process applied only to judicial proceedings, and dismissed the appeal.

Davies v Sandwell Metropolitan Borough Council

In the second case, Davies, the claimant was a science teacher who had received a final written warning in 2005, which would stay on her record for 24 months. The claimant appealed the warning internally, but the hearing was adjourned and she did not seek to rearrange it, so the warning remained in place. Then, in 2006, the claimant was suspended again for misconduct and, following an investigation, was dismissed. She then brought a claim for unfair dismissal.

Again, the claimant lost at the ET, and lost her appeals at both the EAT and the Court of Appeal. The single issue at the court had been whether it was reasonable for the employer to treat the conduct reason for dismissal, together with the circumstance of the final written warning, as sufficient to dismiss.

The Court of Appeal made it clear that it is not the function of the ET to reopen final warnings and decide whether it should have been issued, or whether it was legally valid. The proper function of the ET was to apply the objective test of reasonableness in order to determine whether the fact of the final warning was one which the employer could reasonably take into account when deciding to dismiss the claimant. Scrutiny of the final warning was limited to asking whether the final warning had been given in good faith, whether there were prima facie grounds for following the final warning procedure, and whether giving the warning had been manifestly wrong.

Conclusion

Both Court of Appeal decisions relate to the treatment of previous decisions taken by the employers, which would not have been acceptable had they been courts of law, rather than employers.

In Christou, a previous finding was disregarded by the employers in their disciplinary process. In Davies, an imperfect previous disciplinary process was relied on to dismiss an employee.

What these decisions show is that ‘reasonableness’ is golden when it comes to the ET. So long as dismissals are made in good faith, and are within an objectively reasonable band of decisions, the tribunals and courts will keep out of it: the same strict standards imposed on the courts cannot be imposed on ordinary local authorities whose primary activity is providing public services, not dispute resolution.

Andrew McDonald is a partner at Berrymans Lace Mawer. He can be contacted on 020 7457 3569 or by This email address is being protected from spambots. You need JavaScript enabled to view it..