Chilling lessons of the Baby P social workers case for all public sector workers

There are serious implications for public sector employees and employers from the case, writes Martin Pratt

Nearly five years after the tragic death of two-year old Peter Connelly, remembered as Baby P, the legal fallout continues with the recent rejection of an appeal brought by two of the social workers with responsibility for his care. They were challenging an employment tribunal finding that they were not unfairly dismissed by Haringey Council.

The history of the proceedings is complex but has serious implications for public sector employees and, indeed, employers.

Following the death of Baby P on 3 August 2007, Haringey’s Local Safeguarding Children Board (‘LSCB’) conducted a Serious Case Review overseen by Sharon Shoesmith, then director of children and young peoples’ services at Haringey. She was also chairman of the LSCB.

In April 2008 it appears that Shoesmith assured both of the social workers in question, Gillie Christou and Maria Ward, that they would not lose their jobs as a result of the serious case review. And so it proved – at least initially. The following month, however, following disciplinary hearings, both Ward and Christou were given written warnings. Significantly, on this occasion the council disciplined the two under its so-called “simplified” disciplinary procedure, under which dismissal was not a possible sanction.

Later that year, public outcry over the case led to the intervention of the Secretary of State, who ordered an investigation into child protection and child welfare services in Haringey. That investigation reported on 1 December 2008 that child safeguarding services within Haringey were inadequate and were in need of “urgent and sustained attention”.

Just days later both Christou and Ward were suspended from practice by their regulator, the General Social Care Council. Fresh internal disciplinary action, reopening the previous summer’s proceedings, commenced in March 2009, and both were dismissed from the council on 8 April 2009.

Christou and Ward’s claims for unfair dismissal in the employment tribunal in essence argued that their treatment was unfair since they were subjected to two sets of disciplinary proceedings over the same issue (ie alleging “double jeopardy” on Haringey’s part). Amongst other arguments they further claimed that the delay between the events in question and the second disciplinary proceedings caused them real prejudice.

However, the Employment Appeal Tribunal (EAT) last week upheld the employment tribunal’s initial findings that the dismissals were not unfair. The EAT said that the employment tribunal was entitled to reach the conclusion that it was acceptable for Haringey to conduct a second formal disciplinary proceeding against both social workers when the new management team put into place after the dismissal of Sharon Shoesmith took a different view of the seriousness of their alleged failures. The new regime at Haringey was entitled to consider that the previous charges did not adequately reflect the seriousness of their alleged failings.

The “double jeopardy” aspect of the case is noteworthy. The judgment would suggest that, in extreme cases, validly constituted disciplinary proceedings can be overturned on the basis of public pressure.

Admittedly, in these circumstances, Haringey could perhaps be faulted for instituting proceedings under the “simplified procedure” under which the two social workers could not have been fired. However, the fact that the “simplified procedure” was used was not vital to the decision. The EAT held that an employer who takes second disciplinary proceedings against an employee is not precluded from doing so – although a tribunal is entitled take it into account in deciding if the dismissal was fair in all the circumstances.

This may have important implications for public sector employees. Workers in the public sector are required to make unpopular decisions every day. Things may go wrong. This judgment raises the possibility that where disciplinary action is taken against workers, and the public is not satisfied with the outcome, then public or political pressure and prejudicial press coverage can entitle the employer to go back and come to an alternative decision. That may run counter to the requirements of natural justice, and means that public sector workers may never be free of accusations against them even after the conclusion of disciplinary action.

Martin Pratt is an employment lawyer at Kingsley Napley LLP