Christou v Haringey London Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Elias,Lord Justice McCombe,Lord Justice Laws |
| Judgment Date | 12 March 2013 |
| Neutral Citation | [2013] EWCA Civ 178 |
| Docket Number | Case No: A2/2012/1464/EATRF and A2/2012/1465/EATRF |
| Court | Court of Appeal (Civil Division) |
| Date | 12 March 2013 |
[2013] EWCA Civ 178
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
THE HON MRS JUSTICE SLADE DBE
sitting with Lay Members Mr M Clancy & Mr T Motture
UKEAT/0298/11/DM and UKEAT/0299/11/DM
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws Lord Justice Elias
and
Lord Justice Mccombe
Case No: A2/2012/1464/EATRF and A2/2012/1465/EATRF
Ms Karon Monaghan QC and Mr Richard O'Dair (instructed by Neumans LLP) for the Appellants
Mr Bruce Carr QC (instructed by London Borough of Haringey Corporate Legal Services) for the Respondent
The appellants in this case were social workers employed by Haringey Council. They were found to be at fault in the way in which they had dealt with the case of Baby P, a baby who tragically died at the age of 17 months as a result of a chronic lack of care and abuse displayed by her mother and two men. The child was at the time subject to a child protection plan devised by the Council and was on the child protection register. Mrs Christou was a team leader responsible for a number of social workers, including Ms Ward. The latter had specific responsibility for Baby P. The mother pleaded guilty to causing or allowing Baby P's death. The men, the mother's boyfriend and his brother, were subsequently convicted of the same offence following a trial.
Prior to that trial, the appellants had been disciplined under the Council's simplified disciplinary procedure and given a written warning. The simplified procedure is applicable for relatively minor breaches of conduct where the likely sanction is merely a verbal or written warning. Both parties must agree to this procedure being adopted and the employee is not entitled to appeal any warning imposed. The procedure takes the form of a manager detailing the case to the employee and considering any response.
There was extensive media reporting of the Baby P case and much anger directed at the way in which social services at Haringey had allegedly fallen down on their obligations to the child. By all accounts these appellants were subject to considerable press harassment and intrusion into their lives.
The day following the trial, the Secretary of State for Education, The Rt Hon Mr Ed Balls MP, commissioned a report into safeguarding arrangements for children in Haringey. The report was highly critical of those arrangements and identified a number of serious concerns. On 1 December 2008, immediately following consideration of that report, the Secretary of State issued a direction requiring Haringey to appoint John Coughlan to the statutory position of Director of Children's Services ("DCS") in the Borough. Until that time this post had been held by Ms Sharon Shoesmith. Mr Balls instructed Mr Coughlan to consider staffing issues arising from the Baby P case. Mr Coughlan in turn requested Stuart Young to arrange for an investigation to take place, to include an examination of the role played by social service staff, including the appellants, notwithstanding that they had already been disciplined. Mr Young and Mr Coughlan appointed an experienced DCS, Mr Paul Fallon, to consider whether the prior disciplinary action taken against the appellants was sufficient in the light of all the evidence now available, and to advise whether sufficient grounds existed to warrant further or separate disciplinary proceedings.
In his report, Mr Fallon concluded that different decisions and actions should have been taken in P's case and that if they had been, in all probability the outcome would have been different. He thought that the original disciplinary proceedings had been "blatantly unsafe, unsound and inadequate". He identified five disciplinary charges that he felt justified further consideration with regard to the conduct of the appellants. He fairly recognised that the appellants would have every right to feel aggrieved at having to face fresh charges in relation to information which was available at the time, but felt compelled to conclude that the five matters, even taken in isolation, "are so indicative of flawed judgment that they cannot be allowed to pass."
As a consequence, fresh disciplinary proceedings were instituted against both appellants. This resulted in the much more severe sanction of summary dismissal for gross misconduct. There was an appeal which took the form of a rehearing before a Panel of councillors, with separate hearings for each appellant, but in each case the Panel confirmed the decision summarily to dismiss.
The two appellants brought proceedings before the Employment Tribunal for unfair dismissal. They contended that the dismissals were unfair on a number of grounds, but the primary submission was that it was unfair to subject the appellants to a second disciplinary process at all.
The Employment Tribunal rejected all these points and found that the dismissals were fair, notwithstanding that they involved re-opening the earlier determinations. An appeal to the Employment Appeal Tribunal, before Mrs Justice Slade sitting with lay members, was unsuccessful and the two appellants now seek to challenge that decision on appeal. However, they now focus on much narrower arguments than were advanced before the EAT.
The facts.
It is necessary to say a little more about the circumstances giving rise to these appeals.
Mrs Christou was employed from September 2003 until her dismissal, and supervised a number of social workers, including Ms Ward. Ms Ward was initially employed as an agency worker and she was still not in permanent employment when the events giving rise to these proceedings arose.
Following P's death on 3 August 2007, the Council's local safeguarding children board conducted a serious case review overseen by Sharon Shoesmith, the Director of Children and Young People's Services, into the Council's response to his case. Ms Shoesmith assured Ms Ward that any criticisms of her conduct would not lead to dismissal.
An investigatory interview into Ms Ward's role in the matter was conducted by Mr Preece, described as head of service and investigating manager. Ms Ward was asked in particular about events in June and July 2007 when Baby P's mother had said that she was going with her children to visit an uncle in Cricklewood. Ms Ward admitted that she had not asked for an address nor verified that the mother had in fact gone, and she had not visited the child between 20 June and 10 July, although he should have been seen every fortnight under the protection plan.
Subsequently Mr Preece met Ms Ward under the simplified disciplinary procedure. He found that she had failed in her duties in three respects, all of which were in substance procedural failings: there had been a lack of recording; she had failed to put records onto the relevant data base in a timely manner; and she had failed to call a legal planning meeting despite concerns about child protection for P. She was given a written warning which was to remain live for twelve months.
Mrs Christou was also investigated and interviewed by Ms Walsh-Jones who, like Mr Preece, was described as a head of service and investigating manager. In Mrs Christou's case too the simplified procedure was used, and she also was given a written warning, in her case for three acts of misconduct. They were described as lack of recorded supervision; lack of documented management direction; and no management knowledge of lack of social work tasks that were incomplete.
Following the death of Baby P and the subsequent trial, the decision to re-open the case was taken in the circumstances described above. Following a preliminary interview, Ms Ward was charged with four allegations of misconduct: the first two involved breaching the child protection procedures, one in relation to the frequency of visits between 1 June and 11 July, and the other in failing to follow up a child minder reporting a bruise on 15 June 2007; the third was poor professional judgment as evidenced by the failure to recognise the importance of the child protection plan around the period when the mother was allegedly in Cricklewood ("the Cricklewood period"); and the fourth was the failure to report certain information, including these earlier breaches, to the legal planning meeting held on 25 July. There were therefore no new facts relied upon, but the charges were directed at alleged failings of substance rather than the procedural complaints which had formed the basis of the charges in the simplified procedure.
A disciplinary hearing took place on the 9 April 2009. It was chaired by the new director of children's services, Mr Lewis. All four allegations were substantiated and were held to amount to gross misconduct justifying instant dismissal.
Mrs Christou was subject to a similar process. She was initially subject to the same disciplinary charges as Ms Ward but in her case the second, relating to the report from the child minder, was not pursued at the disciplinary hearing.
The Disciplinary Panel in her case was chaired by Mr Ian Bailey, the Deputy Director of Children and Young People's Services. The Panel found each of the charges upheld and imposed the sanction of instant dismissal.
Mrs Christou had specifically raised as a defence the fact that she had already been subject to disciplinary charges arising out of the concerns about Baby P. Mr Bailey, in the dismissal letter, accepted that it was highly unusual to re-open proceedings in this way, but said that the previous disciplinary process...
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