IT has been another busy month in the ongoing claims brought against Haringey Council over the “Baby P” saga in 2008, with a number of interesting legal issues surrounding the latest legal challenges brought by two former employees.

The past month has seen the appeal of two dismissed employees being heard by the Court of Appeal over the “Baby P” scandal.

The case of Christou and Another v London Borough of Haringey has now been decided by the Court of Appeal.

The Court of Appeal has upheld the Employment Appeal Tribunal’s Judgement that the dismissal of the two social workers involved in the “Baby P” case was fair, notwithstanding that they had previously been taken through a disciplinary process in relation to the same facts, but had only been issued with written warnings.

The employees had sought to argue that their dismissals had been unfair due to an “abuse of process” and that the principle of res judicata applied, which could have prevented the Council from re-opening the disciplinary case against them.

This principle prevents claims from being pursued twice on the same, or substantially similar, facts, to ensure the finality of Judgements in the English Courts and to prevent multiple claims being brought on the same grounds.

The Court found, however, that as the matter in question was an internal disciplinary hearing and the proceedings were not therefore capable of being judicial in nature, res judicata could not apply and instigating further action against the employees was found to be fair when viewing the disciplinary process and fairness of the subsequent dismissals as a whole.

While both the Court of Appeal and the Employment Appeal Tribunal in the above case held that the Employment Tribunal was entitled to support the employer’s decision to discipline the two employees twice for the same offence and then dismiss the second time around, employers should treat this decision with some caution.

Employers should be very cautious of relying on it to support a decision to discipline an employee for a second time for the same offence where no new evidence has come to light.

As the Employment Appeal Tribunal stressed, cases in which it is appropriate and fair for an employer to change their view as to the appropriateness of a disciplinary sanction previously imposed, and to embark on second disciplinary proceedings arising out of the same conduct, are likely to be extremely rare.