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January 5, 2017

Double Jeopardy – Punishing Twice for the Same Misconduct

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.

Baby P and Res Judicata

We should do well to re-examine the case of Christou and anor v London Borough of Haringey [2013] EWCA Civ 178. This is the case brought by the two social workers involved in the Baby P case. They were investigated following his death, resulting with a written warning being received. However, after a new director was appointed and a report commissioned, a further investigation of their roles was conducted and 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.

At the EAT…

The tribunal dismissed their claims, and the EAT dismissed their appeals, holding that the simplified disciplinary procedure did not constitute an adjudication between the parties and so res judicata did not apply.

And then the Court of Appeal…

The appellants then appealed to the Court of Appeal with two of the main grounds of appeal being that res judicata did apply so as to bar the second disciplinary process and/or that it was an abuse of process to subject the appellants to a second set of procedures.

The CoA dismissed the appeals. The court highlighted that the first investigation had been an informal one, not conducted under the full disciplinary procedure. They also noted that the first investigation had been inadequate and further allegations had been brought to light after its conclusion, such that the two investigations focused on different matters. Furthermore, in any event, the court did not accept that the exercise of disciplinary power by an employer was a form of adjudication. It was held that this was not;

a determination of any issue which established the existence of a legal right”, nor was it “determining a dispute”:

therefore, the doctrine of res judicata did not apply.

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.

Basic Principles

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.

Erinna Foley-Fisher