Case report – dismissal of social worker and team manager in Baby P case

Citation

Wije, A. (2012), "Case report – dismissal of social worker and team manager in Baby P case", Human Resource Management International Digest, Vol. 20 No. 7. https://doi.org/10.1108/hrmid.2012.04420gaa.001

Case report – dismissal of social worker and team manager in Baby P case

Article Type: Employment law outlook From: Human Resource Management International Digest, Volume 20, Issue 7

The tragic death of Baby P on 3 August 2007, along with the subsequent trials of his mother and the two men charged with her attracted much media attention as did the subsequent litigation brought by the former Director of Children’s and Young Peoples’ Services, Sharon Shoesmith. The case report below concerns the dismissals of the social worker and team manager responsible for the care of Baby P and involves the important question of double jeopardy and, in particular, whether someone can be subjected to a second disciplinary procedure and sanction for the same offence when a different view is taken of the seriousness of an incident by new management.

From 2 February 2007, Ms Ward was the social worker responsible for the care of Baby P and Mrs Christou was a team manager in the Safeguarding Team in the Children’s Service Department of the London Borough of Haringey. Baby P was on the child protection register, a child protection plan had been drawn up for him and his mother had been arrested on suspicion of causing him injury. On 1 June 2007 he was seen to be bruised.

Following Baby P’s death on 3 August 2007, a serious case review was conducted, overseen by Sharon Shoesmith. Ms Ward attended an investigatory interview where it was discovered that Baby P’s mother had told her that she was going away and taking Baby P with her but that Ms Ward had not asked where she was to stay and had not verified that she had gone. Ms Ward had further not seen Baby P between 20 June and 10 July 2007 when under the child protection plan she was to see Baby P every 14 days. At some point during the investigatory process, Sharon Shoesmith assured Ms Ward that she would not lose her job over the Baby P case. The parties then agreed that Ms Ward would attend a meeting under the council’s “simplified disciplinary procedure” at which it was held that there was a lack of recording and a failure to call a legal planning meeting following child protection concerns. This was held to constitute misconduct and Ms Ward was issued with a written warning that was to remain live for 12 months. Mrs Christou also received a 12-month written warning for misconduct, specifically for lack of recorded supervision, lack of documented management direction and no management knowledge of social work tasks that were incomplete.

Baby P’s mother pleaded guilty to causing or allowing Baby P’s death and, on 11 November 2008, Stephen Barker and Jason Owen were found guilty of that charge. Media coverage shifted its focus to expressing anger at the council and, on 12 November 2008, the then Secretary of State for Children Schools and Families announced an investigation into child protection in Haringey. The subsequent report identified serious concerns and stated that safeguarding services within Haringey were inadequate and in need of urgent and sustained attention. The Secretary of State also required that consideration be given to staffing issues arising from the case and this was interpreted to mean that a fresh look should be taken at all the issues including matters arising from the involvement of Ms Ward and Mrs Christou, even though they had been subjected to earlier disciplinary proceedings. The decision was taken to conduct a fresh investigation to consider matters that had not been considered at the earlier hearings.

The fresh investigation held that had child protection procedures and sound professional judgement been applied consistently following the injury which occurred on 1 June 2007, the situation might have been recovered and that the earlier disciplinary proceedings were unsafe, unsound and inadequate and further disciplinary proceedings were recommended. Ms Ward and Mrs Christou were subsequently re-suspended and investigated and invited to further disciplinary hearings following which both were dismissed for gross misconduct with effect from 9 April 2009. Both appealed against their dismissals but their dismissals were upheld.

The Employment Tribunal found that the dismissals of Ms Ward and Mrs Christou were within the range of reasonable responses open to the council. However, the Tribunal was split as to whether or not it was fair to undertake a second disciplinary process. The minority member felt that the decision at the first stage to use the simplified procedure was the decision of the employer, not the individuals, it was the employer’s view that the misconduct was not sufficiently serious to justify further action, there was no written rationale for revisiting the matter, no new evidence had been revealed, there was no mandate to revisit individual disciplinary cases and that there could be no risk to the public because the council had actually employed Ms Ward after Baby P’s death (whereas she had previously worked as an agency worker). However, the majority held that an employer is entitled to bring a second disciplinary action where dismissal was found to be within the range of reasonable responses and the original disciplinary action was inadequate. It was said that there was in effect a change of management which took a different view of the seriousness of the matters involved. They also held that the delay of some 18 months in concluding the matter internally did not cause any prejudice.

Before the Employment Appeal Tribunal, it was argued on behalf of Ms Ward and Mrs Christou that their dismissals were unfair because the matters for which they were dismissed had been dealt with in the first disciplinary proceedings by way of written warnings. Further, the factual basis of the complaints dealt with in the first and second disciplinary proceedings were the same and that the principle of res judicata therefore applied. It was also argued that the second set of disciplinary proceedings constituted an abuse of process and that the council was a body corporate and bound by the decisions of its duly authorised agents and that the tribunal had wrongly relied on a change of management to justify new proceedings. It was also argued that the delay in proceedings rendered the dismissals unfair.

The EAT held that the decision at the first disciplinary hearing under the Council’s simplified procedure did not require the presentation of evidence or making of submissions and was not an adjudication of a dispute between parties to be a judicial dispute and so no cause of action or issue estoppel arose which would have precluded the council from taking the second disciplinary action. Nor did the second disciplinary hearings constitute an abuse of process as internal disciplinary proceedings are not litigation so as to found a process within the principle of abuse of process. The EAT further held that the Employment Tribunal had rightly considered the question of the second disciplinary proceedings as one of fairness under section 98(4) Employment Rights Act 1996. Here, the council had pursued the second disciplinary proceedings and sanctioned dismissal because new management considered the actions and defaults of Ms Ward and Mrs Christou to be considerably more serious than was reflected by the first disciplinary proceedings. The EAT held that the circumstances in which it may be held to be reasonable for an employer to change their view as to the appropriateness of a disciplinary sanction previously imposed and to embark on second disciplinary proceedings on the same facts are likely to be extremely rare. In such rare circumstances, the EAT held that, depending on the particular facts and law applicable to the employment relationship, the decisions taken by an employer on disciplinary action may not, as a matter of law, preclude them from subsequent disciplinary proceedings on the same facts but that this should not be taken as encouragement to do so. The employment tribunal therefore did not err in failing to hold that the council was precluded from conducting the second disciplinary proceedings by the first disciplinary action.

Separately, the EAT held that Ms Ward was dismissed for her failure to maintain required visiting frequency in respect of Baby P and in both cases, in relation to poor professional judgment and that they were dismissed for their conduct and not political or media pressure. It was also held that the tribunal did not err in concluding that delay did not cause any prejudice and so was not an independent ground to support a challenge to the fairness of the dismissals.

Comment

As stated by the EAT, the fact that an employer may be able to subject an individual to a second set of disciplinary proceedings on the same facts should not be taken as encouragement to do so. Employers risk findings of unfair dismissal being made against them if they do not act fairly in internal procedures.

Case reference: UKEAT/0298/11/DM & UKEAT/0299/11/DM

Asha WijeSimpson Millar LLP, Wimbledon, London, UK.

Acknowledgements

© Copyright 2011 Simpson Millar LLP SolicitorsThis newsletter is intended for information purposes only and its content should not be applied to any particular set of facts or relied on without legal or other professional advice.

About the author

Asha Wije is an Employment Law Solicitor and Partner at Simpson Millar LLP. To find out more about how Simpson Millar LLP’s employment law team could help you visit: www.simpsonmillar.co.uk or call 0844 858 3818 to speak to Asha Wije or 0844 858 3499 to speak to Joy Drummond.