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Double Jeopardy – punished twice for the same misconduct

January 17, 2017 at 9:00 AM

Can an employer re-investigate the same allegations against the same employee?

Common sense probably tells you that there is something inherently wrong with this idea. However, in some circumstances, a re-investigation and a second sanction can be fair. This happened to two social workers involved in the Baby P.

Employment Appeal Tribunal

The case of Christou and anor v London Borough of Haringey [2013] EWCA Civ 178 was brought by the two social workers involved in the Baby P case. They were investigated following his death, resulting in a written warning each. A new director was appointed and after a report and further investigation of their roles, they were both dismissed. They brought claims for unfair dismissal with part of their claim being that they had already been investigated, and it was unfair that a second investigation into the same allegations was undertaken.

The Tribunal dismissed their claims. Their appeal to the EAT was also dismissed – the disciplinary procedure did not constitute an adjudication between the parties.

And then the Court of Appeal...

The two main grounds of appeal were res judicata (double jeopardy) – the matter had already been dealt with at a disciplinary hearing which should bar the second disciplinary process and that it was an abuse of process to subject the social workers to a second set of procedures.

The Court of Appeal dismissed the appeals: the first investigation had been an informal one, and not conducted under the full disciplinary procedure. Further, the first investigation had been inadequate and more allegations had been brought to light after its conclusion, such that the two investigations focused on different matters.

The court also noted that there was no legal barrier to investigating the same issue twice and doing so didn’t necessarily make a dismissal unfair. The decision to re-investigate simply had to be a fair decision in light of all the circumstances.

It comes down to the same familiar principles: was the decision to re-investigate a fair one? If it was, then an employer can indeed re-investigate an employee.

About the Author

Philip McCabe Photo

Philip McCabe is an experienced employment lawyer who has been advising businesses and individuals on a wide range of employment and HR issues since 2000.

He is a member of the Employment Lawyers Association, Industrial Law Society, and Law Society. He regularly writes for national publications on employment law issues and is a regular columnist in the Derbyshire Times.

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