“These were lack of recording, failure to put records onto the ‘Framework I’ database in a timely manner and failure to call a legal planning meeting following child protection concerns in relation to [Baby P]. Mr Preece declared that, after careful consideration of the relevant evidence, he found those allegations to be substantiated and they amounted to misconduct. He issued her with a written warning which would remain live for 12 months. He noted that under the simplified process there was no right of appeal. A copy of the letter was to be provided to the General Social Care Council.”
“Mrs Christou was also given a written warning, by Teresa Walsh-Jones. …In Mrs Christou’s case she had received no assurance about the likely outcome, but Miss Walsh-Jones also referred to a meeting, this time on 19 May (for which no notes were provided) and which had been held under the council’s simplified disciplinary process. The allegations in Mrs Christou’s case were: lack of recorded supervision, lack of documented management direction and no management knowledge of social work tasks that were incomplete. She found that the allegations were substantiated and that they amounted to misconduct and she gave particulars of what constituted the breach of conduct she had found proved. Mrs Christou was given a written warning which would remain live for 12 months. As in Ms Ward’s case, there was no right of appeal as the warning had been given under the simplified process and a copy of the letter was to be provided to the General Social Care Council.”
“The inspection identified a number of serious concerns, and stated that safeguarding services within Haringey were inadequate and were in need of urgent and sustained attention.”
“15.31 At the same time the Secretary of State confirmed that he required John Coughlan to consider staffing issues arising from the [Baby P] case. Mr Coughlan asked Stuart Young to arrange for an investigation to be carried out regarding the actions of council staff. At this time, Mr Young discussed with Mr Coughlan what the direction of the Secretary of State might mean. They regarded it as a broad remit, which could include training and transfers of staff between positions but it could include also staff communications, action plans and improvements, including commissioning. Mr Young and Mr Coughlan agreed that this requirement meant that a fresh look should be taken at all the issues involved in [Baby P’s] case, including matters arising from the involvement of Ms Ward and Mrs Christou. That was the case even though they had been subjected to earlier disciplinary proceedings. 15.32 Mr Young appears to have been aware of the imposition of warnings on Ms Ward and Mrs Christou, although he was not directly involved in that matter, and appears to have given some consideration to the possibility of unfairness arising from the fact that they might be disciplined for a second time in relation to matters arising from the [Baby P] case. However, he then examined the disciplinary process conducted in April and May 2008, and reached the view that a fresh investigation should consider matters that had not been considered at the earlier hearings even though the underlying facts may have been evident at the time.”
“…examine whether the current disciplinary sanctions in place were sufficient in the light of the evidence available at the time of disciplinary proceedings in April and May 2008 and the evidence now available from the later criminal proceedings, SCR and JAR reports…”
“…Mrs Christou expressed the view that she thought that it was strange that the mother had left her home to look after an uncle in Cricklewood and that she had instructed Ms Ward to go and see the family, since one of her concerns was that there were older children who needed to attend school.”
“…there was a discussion as to whether or not Ms Ward had informed those present at the Legal Planning Meeting (convened to discuss whether or not care proceedings should be instituted) that the family had left the family home and gone to Cricklewood.”
“…he was in no doubt that if Child Protection Procedures and sound professional judgement had been applied consistently following an injury which occurred on1 June 2007 , the situation might have been recovered. He regarded the earlier disciplinary proceedings as unsafe, unsound and inadequate. He took issue with the use of the simplified procedure and said that although the more serious matters which he proposed should now be investigated were known at the time, they were not properly investigated earlier and, as a result, the allegations put to the claimants related to administrative or process issues and were regarded as relatively minor breaches of conduct. He was of the view that grounds existed to justify the consideration of further or separate disciplinary proceedings and he identified five separate charges.”
“Ms Ward said that there were two visits to the family completed in June and two in July. She understood that it was said that there was a breach of the Child Protection Plan because the visits were not strictly at fortnightly intervals but she contended that the department was told that the Child Protection Plan consisted of recommendations which were not set in stone. She said that she had 19 cases, some of which were very complex and that her case load was difficult to manage or ‘unmanageable’. Ms Ward said to Ms Brazil that she made it clear that she had been struggling with the workload. …there is a discussion about the mother’s apparent move to Cricklewood and Ms Ward gave her account there of what she understood had happened. This began with her having received a message from a colleague to say that the mother had gone away because it was her birthday and was taking the children away, that she then contacted the mother who told her that she had been visiting an uncle in Cricklewood, that she had said to the mother that she may need to come and visit her there and that the mother did not object and that she discussed the matter with her team manager Mrs Christou. It is clear that, at this meeting, Ms Ward did not have access to her case papers because she said on more than one occasion that she was having to try to remember what had happened.”
“You accepted that the management note on Framework-I did not represent all the action you took on hearing of this absence. However, it was also clear that actions specifically set out in the London Child Protection Procedures were not followed nor did you advise that they should be. Your representative asked what could and should have been done in the period you were aware of this absence. In evidence, Eleanor Brazil [an experienced child protection practitioner] was specific, clearly explaining the reasons why it would be necessary to contact the Police and the relevant local authority and visit the home to see if in fact the family had gone away. On the latter point, you did tell Paul Fallon that you had asked Marie Ward to visit, though there is no evidence that you checked if this had happened.”
“…the three allegations which I found to be proven, taken together, constitute gross misconduct. I was satisfied by the evidence provided to the panel that there was sufficient known to you and in the Child Protection Plan to demonstrate that this was a case where a high degree of risk was apparent and which would ordinarily attract a heightened level of vigilance. It is therefore my decision that your employment with this Council should be terminated with immediate effect. Consequently your last day of service will be9 April 2009 .”
“15.63 The appeal panel reached its conclusions in relation to Ms Ward’s case and set them out (briefly) in a letter to her dated4 February 2010 . The reasoning emerged from Mr Dodds evidence that Ms Ward had visited the family on 1 and 19 June and on 11 and 30 July. It was their view that the required visiting frequency had not been adhered to. That was sufficient in our view for them to find the allegation proved, but they commented that Ms Ward was dealing with a very young child, that there was unexplained injury, that the parent had been arrested and that one further visit would have ensured compliance. The first allegation was found proved. In relation to workloads, the panel acknowledged that Ms Ward had been under pressure, and did not dispute that she had been ‘struggling’. In Mr Dodd’s view, that did not excuse her failure. 15.64 The panel did not find the allegation that Ms Ward had failed to follow up the report of bruising made by the child minder on 15 June to be proved. 15.65 The panel found that Ms Ward had shown poor professional judgment in her failure to recognise the importance of the breaches of the Child Protection Plan around28 June 2007 . In support of this conclusion, they cited the bruising noticed on 1 June and the restrictions put in place at that time, the requirement for fortnightly visits, the message left on 28 June, the message left by the child minder, the discussion with Mrs Christou, the absence of any home visit, the fact that Ms Ward did not have an address for the family when they were allegedly in Cricklewood and that there had been no contact with the local authority for the area into which they had apparently moved, or the police. This was also found proved.”
“It seems to us that there were four potential drivers for the dismissals. These were the actual conduct relied upon by the employer, the death of [Baby P], media pressure and political pressure.”
“Mrs Brodie is of the view that it was not appropriate to undertake a second disciplinary process against these claimants. She is of the view that it was an unfair decision. She notes that the decision at the first stage to use the simplified procedures was the decision of the employer and not that of the claimants. It was the employer’s view, not the claimants’, that the misconduct was not sufficiently serious to justify any further action. Second, there was no written rationale produced for revisiting the actions of these claimants. Thirdly, no new information was revealed nor was there evidence of concealment by the claimants or corruption on their part. Further, it was open to the respondent to discipline the claimants, in the way in which they ultimately did discipline them, in May 2008. The claimants have cooperated with the disciplinary process at every stage. Although the Secretary of State required the respondent to look at staffing issues, there was, in Mrs Brodie’s view, no specific mandate to review the individual disciplinary cases. Lastly, Mrs Brodie is of the view that, if it were to be said that a risk to the public justified reopening the enquiry, it is clear that the respondent did not regard Maria Ward as a risk because they employed her after the facts were known.”
“The majority view is that, in this case, a risk to a member of the public was clearly identified. We have already indicated that the misconduct found justified dismissal. Where that is the case and there is a risk to members of the public, then we consider that an employer is entitled to bring a second disciplinary action. That is because the circumstances show that the originally [sic] disciplinary action was inadequate, having regard to our finding that dismissal was within the range of reasonable responses for these matters. Here there was, in effect, a change of management, which took a different view about the seriousness of the matters involved. For the majority, this aspect distinguishes this case from Sarkar . For those reasons, the majority say that it was fair for the respondent to undertake a second disciplinary process against these claimants.”
“We also considered the matter of delay. There is no doubt that there was a substantial delay between the events the subjects of the allegations and the disciplinary action taken against the two claimants. The delay was in the order of 18 months. It might reasonably be expected that prompt disciplinary action would have occurred in the autumn of 2007 but the claimants were not dismissed until April 2009. In this case the delay arose from the decision to conduct a second set of disciplinary proceedings, which in turn arose after the end of the first criminal trial, concluded in November 2008. Both claimants had access to all the relevant documentation by the time of the disciplinary and appeal hearings. Apart from the fact that the claimants were subjected to disciplinary action for a second time (dealt with above), there was no obvious prejudice caused to the claimants by the delay. Nor could we see that the delay, of itself, made the investigation unreasonable. We therefore reject Mr Toms’ submission base [sic] on AvB .”
“In particular there was no evidence presented to us that it was impossible for Ms Ward to undertake the necessary home visits. There was evidence based on her workloads that it was difficult for her to undertake those visits but it was not suggested that it was impossible for hr to undertake the visits, even if it was necessary to prioritise other work differently.”
“She acknowledges however that this argument applies only to the question of visiting frequency. The absence of a broader focus does not in her view affect the reasonableness of the investigation, insofar as it concerns the Cricklewood absence.”
“A wider investigation would not, in the view of the majority, have disturbed the findings which the employer made in relation to the two specific charges where we have held that it was within the range of reasonable responses to dismiss for those matters. It is the view of the majority that a wider investigation had the potential to suggest that the visiting frequency was not regarded as being all important in every case but, having regard to the particular circumstances of this case, a wider investigation would not have undermined the particular charge and its significance. The majority of the tribunal is therefore of the view that the absence of a wider enquiry is not sufficient to undermine the validity of the conclusions the employer reached in relation to these specific matters.”
“30. Indeed, even if the byelaws created only private rights as between the institute and its members, I see no reason why the principle of cause of action estoppel should not apply. In Meyers v Casey(1913) 17 CLR 90 114, where the High Court of Australia was considering a decision of the committee of the Victoria Racing Club, Issacs [sic] J said this of objections considered by the committee: ‘They are, by reason of the committee's decision, res judicatae, as much as if instead of the committee it had been the Supreme Court unappealed from, that had so held. That rests on the well known rule that a competent court or other tribunal has jurisdiction to give a wrong judgment, and if there is no appeal in the strict sense, then its decision, whether right or wrong, must stand, and cannot be questioned in any subsequent proceedings elsewhere.’ 31. See also Spencer Bower & Handley, Res Judicata , 4th ed, at para 2.05, where the editors say: ‘Every domestic tribunal, including any arbitrator, or other person or body of persons invested with authority to hear and determine a dispute by consent of the parties, court order, or statute, is a ‘judicial tribunal’ for present purposes, and its awards and decisions conclusive unless set aside.’”
“It is inconceivable that Ms Shoesmith would have ordered second disciplinary proceedings against the Second Appellant. She had given an assurance [that] the Second Appellant would not lose her job over the P case and no new facts had emerged.”
“Poor professional judgment …evidenced by the failure to recognise the importance of the breaches of the child protection plan in the period around 28 th June 2007.”
“65. In certain circumstances a delay in the conduct of the investigation might of itself render an otherwise fair dismissal unfair. … 67. Where the consequence of the delays is that the employee is or may be prejudiced, for example, because it has led to a failure to take statements which might otherwise have been taken, or because of the effect of delay on fading memories, this will provide additional and independent concerns about the investigative process which will support a challenge to the fairness of that process.”
“It was not suggested to the Tribunal that any principle of apparent bias rendered the dismissal of [Mrs Christou] unfair, as evidenced by the fact that the point did not appear to be taken in the original notice of appeal.”
“Maria consulted me about extending her stay with her uncle, who lives in Cricklewood and who is seriously unwell and refusing treatment. T seems to be wanting to support her uncle and her cousin. Pointed out that there was probably little T could do and that as a mother of 4 children she should prioritise their needs. Asked Maria to point this out to T and encourage her to return home with a view to visiting her uncle at the weekend.”
“ Cricklewood Ultimately, Cricklewood concerned a judgment made by the C’s to accept [the mother’s] explanation (whether with misgivings or because she appeared plausible) and not to take further steps to determine the exact location of PC prior to the family’s return.”
“The appellate body, whether the EAT or this court, must be on its guard against making the very same legal error as the ET stands accused of making. An error will occur if the appellate body substitutes its own subjective response to the employee’s conduct. The appellate body will slip into a similar sort of error if it substitutes its own view of the reasonable employer’s response for the view formed by the ET without committing an error of law or reaching a perverse decision on that point.”
“8.1 This simplified procedure will be used where an investigation or fact finding interview has taken place and there is a case to answer and the likely sanction will be a verbal or written warning and both sides agree short hearing is appropriate. This could mean that the manager details the case to the employee and, having heard his or her response decides on the sanction. This approach would usually suit the initial stages of dealing with wilful poor performance at work or relatively minor breaches of conduct.”
“The principles of natural justice underpin this Disciplinary Procedure. All those involved in disciplinary action must act in good faith and with common sense.”
“(i) the decision, whether domestic or foreign, was judicial in the relevant sense…”
“Every domestic tribunal, including any arbitrator, or other person or body of persons invested with authority to hear and determine a dispute by consent of the parties, court order, or statute is a ‘judicial tribunal’ for present purposes, and its awards and decisions conclusive unless set aside.”
“25. Though it was relevant, the fact of the earlier decision to use the FBP procedure did not fetter the Trust in its disciplinary options, or prevent the Trust from relying on the earlier incidents as part of Dr Sarkar's overall course of conduct, or restrict the range of reasonable responses to that conduct. In the context of a disciplinary process the Trust was entitled to revise its approach to the misconduct following a detailed assessment of the evidence of the continuing course of his conduct and its impact. 26. I am unable to accept Mr Sutton’s submission that the ET erred in law on the reasonable responses point. The misconduct found by the disciplinary panel consisted of matters that were covered by the initial investigation and those matters were the basis of the FBP discussions. The ET were entitled to regard the agreed use of FBP as an indication of the Trust’s view that the misconduct alleged against Dr Sarkar was relatively minor and that it was prepared to deal with it under a procedure that could not result in his dismissal. In my judgment, the ET did not err in law in concluding that it was inconsistent of the Trust then to charge Dr Sarkar with, and find gross misconduct based on, the same matters and to dismiss him. That was a factor to which the ET were entitled to attach weight in applying the range of reasonable responses test.”
“The decision to undertake the second investigation and bring further disciplinary charges was unlawful as it was based on the unlawful decision of the Secretary of State to dismiss Sharon Shoesmith and replace her with Peter Lewis.”
“The conference on 8 th June 2007 did not specify, as it should have done, what should happen if the parent did not comply with the protection plan. As throughout this case, the emphasis at the June conference was on family support … When [Maria Ward] learnt [sic] that the mother had taken the children including [Baby P] to Cricklewood she informed Gillie Christou who advised her to obtain the address and make a visit. When Gillie Christou was off sick, the responsibility fell to her manager, Sue Gilmore, who also did not inform any other agency at this time. It is a matter of judgment as to whether to act immediately or not. … In all the circumstances, including the timescale when Gillie Christou had notice of this incident (2 nd -4 th July), her response was reasonable.”
“Given the circumstances the fact that the child was uncontactable for 12 days required an unannounced visit… The key thing was that no-one [sic] knew where this child was – could have been anywhere – nothing was done to ascertain where he was …This is an ‘at risk’ child – ref to taking them out for a birthday [a previous reason for absence given by the mother] ref to sick uncle, the mother could have been anywhere. There was no address in Cricklewood. A mobile phone can be used anywhere.”
“MW She had three days before going off ill [to act] just because he is with his mother doesn’t mean he isn’t missing. MW There should have been an immediate … NT [Mrs Christou’s counsel] Making an unannounced home visit is not mentioned at [page ref] MW You come to it by common sense. We didn’t make a comparison with other children. Its [sic] common sense to do something. On 1/6 child had bruises not accounted for. Other issues. If you don’t know where the child is – there is [listing?] in Haringey – you do something about it. Pop round the house press for an address, not unreasonable [page ref].”
“6. Did not ensure: … (b) that you or the allocated Social Worker were aware of the precise location of PC for a period of time in July 2007.”
“…the Second Appellant has never suggested that the real reason for her dismissal was the broken state of the Department.”
“The Second Appellant has not suggested that the real reason for her dismissal was that working conditions made it impossible to carry out her professional duties.”
“…even if the workload and work circumstances of the 1 st Appellant was not relevant to the reasonable belief in gross misconduct they were still relevant to whether dismissal was within the band of reasonable responses.”
“We all agree that these matters are properly to be regarded against the background of the events which we have set out as the appeal panels’ factual conclusions above. Their actions are to be judged against the background of what was known at the time and not with the benefit of knowledge of [Baby P’s] death.”
“There was no apology for her failure to meet the visiting frequency requirement and the council were not being assured that she would not fail in the same way in the future.”
“40. As regards the denial of documentation to the claimants at their investigatory interviews, we have mentioned above that, by the time of the disciplinary and appeal hearing, they had all the documentation available to them. … In our considered judgment, and given the processes that followed the investigation interviews, this matter does not, in the view of any of us, render the investigation an unsafe one. … 41. We do not consider that Mr Young’s decision not to release the written warning letter [to Leslie Davies, the lawyer to whom Baby P’s case had been referred on17 June 2007 ] until he was required to do so, affects the fairness of the investigation as the matters ultimately held to be acts of misconduct by the two claimants. This matter related narrowly to the Legal Planning meeting and the alleged failure of Ms Ward and Mrs Christou to inform Leslie Davies of the Cricklewood absence. In the end this was not a matter on which the respondent relied upon in relation to Mrs Christou and Mr Carr said that the respondent does not seek to rely on that in relation to Ms Ward. Accordingly since it is confined to that particular matter, we hold that Mr Young’s decision did not render the investigation unreasonable.”
“TWJ About 29 June Ms A says going to Cricklewood GC I think, by 4 July she was encouraged to come back. I thought it was around school holiday On one (occasion) told it was about a birthday, another to look after sick uncle I have recollection that she extended stay from holiday. I did know and M told me about sick uncle. I didn't know it was Cricklewood- I kept saying to M to find out where as she could visit. I remember saying to M not right as she was putting her kids' education in jeopardy. It didn't seem in character- I remember pressurising M to follow up and find out about sick uncle. Made manager's note. Pretty certain I didn't know what area she was in. TWJ Did you advise M to find out where they were in order to let other borough know there were children on register? GC Yes, initially it was about finding out where she was. The story didn't add up, I was I quite concerned about that.”
“I told Maria [Ms Ward] to contact the mother and find out what was what.”
“So you asked Maria to go and next thing you heard was that the mother was back? That’s what I remember.”
“I didn’t recall Cricklewood but now that I’ve seen the paper…” implying that she then recalled the discussion. It appears that at the investigatory meeting she saw the note she made of the meeting. Mrs Christou stated: “I was pressing Maria to identify where they were. We didn’t know obviously.”
“I was very concerned …She didn’t strike me as the sort of person that would go and look after a sick uncle …So I didn’t let it drift, I certainly, I didn’t know where they’d gone. I struggle to remember these conversations but I think I didn’t know where they’d gone so I asked Maria to establish that and find out.”
“I was trying to indicate something needed to happen.”
“I reported that to the team manager, it does get a bit hazy around this one, I can only say what I can remember, I think there are gaps but I just can’t remember…”
“Apart from the fact that the claimants were subjected to disciplinary action for second time (dealt with above) there was no obvious prejudice caused to the claimants by the delay.”
“The rules of natural justice in this field do not in my view form an independent ground upon which a decision may be attacked, although a breach will clearly be an important matter when the IT consider the question raised in s57(3) of the Act.”