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Cite as: [2013] IRLR 379, [2014] 1 All ER 135, [2014] QB 131, [2014] 1 QB 131, [2013] EWCA Civ 178, [2013] 3 WLR 796, [2013] WLR(D) 97, [2013] ICR 1007

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		Neutral Citation Number: [2013] EWCA Civ 178
		Case No: A2/2012/1464/EATRF and A2/2012/1465/EATRF

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

12/03/2013

B e f o r e :

LORD JUSTICE LAWS
LORD JUSTICE ELIAS
and
LORD JUSTICE McCOMBE
____________________

Between:

	(1) GILLIE CHRISTOU and (2) MARIA WARD	Appellants
	- and -
	LONDON BOROUGH OF HARINGEY	Respondent

____________________

(Transcript of the Handed Down Judgment of
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____________________

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
Hearing date : 19 February 2013
____________________

HTML VERSION OF JUDGMENT
____________________

Lord Justice Elias :

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 was seriously flawed, that it would be unreasonable not to consider such serious allegations, and that the current proceedings raised different grounds of complaint than the original proceedings had done. He also said that the Panel had not accepted that the mere passage of time was a reason for not re-opening matters.

Each appellant then appealed the decision. There were separate Appeal Panels for each, although Councillors Dogus and Dodds were common to both.

The appeal in Ms Ward's case took place on the 16 and 19 October and was then adjourned until 1 February. Ms Ward was represented by counsel. Save that the Panel found that Ms Ward had followed up the child minder's report of bruising and so did not uphold that allegation, the Panel dismissed the appeal. It was not merely the formal failure to comply with the visiting schedule which established the breach; it was the fact that this was in the context of a young baby, with unexplained bruising, whose parent had been arrested. The Panel acknowledged the heavy workload but did not consider that this excused the failure. They were also critical of the failure to recognise the importance of the breaches of the child protection plan in relation to the Cricklewood period. They criticised, amongst other matters, the fact that Ms Ward did not have an address in Cricklewood, nor did she alert the local authority for that area that baby P was there, nor did she notify the police. It was a serious matter not knowing where P was during this period.

In Mrs Christou's case the Appeal Panel adjourned to consider and take legal advice on the question of whether the principle of "double jeopardy" applied to the proceedings in the light of the previous action that had been taken against her. They were advised that it was not an issue and therefore proceeded to determine the appeal.

The Panel found that the allegation relating to visiting frequency was upheld but did not warrant dismissal. However, Mrs Christou had also shown poor professional judgment in relation to the Cricklewood period and this amounted to gross misconduct for which dismissal was warranted. The third allegation was found not proven.

Both Appellants appeared before their professional body, the General Social Care Council, in May 2010 and admitted a number of charges against them, including that they had been unaware of P's whereabouts during the Cricklewood period. They were both suspended for a period.

The decision of the Employment Tribunal.

The appellants submitted before the Employment Tribunal that the dismissal was unfair under section 98 of the Employment Rights Act 1996. Broadly, a dismissal will be unfair unless the employer can show that he genuinely dismissed for a fair reason and the tribunal is satisfied that the employer has carried out a reasonable investigation and that dismissal is within the range of responses open to a reasonable employer for the misconduct established.

There were numerous allegations of unfairness advanced before the Tribunal, all of which were rejected, some unanimously and some by a majority. The principal ground, which remains the focus of the current appeal, was the double jeopardy submission - the allegation that it was unfair to re-open the proceedings at all with the consequence that the dismissal was necessarily unfair. A reasonable employer would not have acted in that way. It was accepted that there was no legal barrier to a second disciplinary process; the claim was that to initiate such proceedings here rendered each of these dismissals unfair.

The Tribunal were unanimous in recognising that there would be circumstances where it would be appropriate to reopen a case, such as where new information arose, or if there was fraud or corruption, but they were divided as to whether it was fair to do so in the circumstances of this case. The majority considered that it was fair but one of the lay members dissented on the point. The reasons for the division of opinion are recounted in the paragraphs 26-27 of the decision:

"26. 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. It is also her view that, whilst a wider enquiry would have been justified, it was intrinsically wrong to focus on disciplinary action against these claimants when they had already been disciplined once. Mrs Brodie also notes that Mr Young, although an Assistant Chief Executive of the council, was an HR professional and could have easily have been involved in the first disciplinary process. Mrs Brodie considers this case to be similar to the Sarkar case, referred to above. For all of those reasons, Mrs Brodie is of the view that reopening the investigation was unfair. In short, she does not agree that the end justifies the means.

27. 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 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."

As to the remaining grounds unsuccessfully advanced before the Employment Tribunal, it is only necessary briefly to mention them since they are no longer in issue.

First, and importantly, the Tribunal rejected a submission that the Council had simply bowed to media and political pressure and that this was the true reason for the dismissal. The Tribunal were very much alive to that possibility but were satisfied that the reasons given for the dismissal were the genuine reasons. Second, the Tribunal rejected a submission that the investigations suffered from various procedural defects although the minority member considered that their focus had been too narrow. Third, the Tribunal specifically considered the submission that the delay - in the order of eighteen months - had rendered the dismissals unfair and unanimously rejected it. The appellants had access to all relevant documentation and were not, in the Tribunal's view, prejudiced in any material way. Finally, the Tribunal also unanimously concluded that the dismissals in relation to the Cricklewood absence fell within the band of reasonable responses. In the case of Ms Ward, the majority held that instant dismissal was also justified because of the failure to visit as required by the care plan, but the dissenting member disagreed about that.

The appeal to the Employment Appeal Tribunal.

The appellants renewed before the Employment Appeal Tribunal virtually all the grounds which had failed to find favour with the Employment Tribunal. Each was rejected by the court in a comprehensive and careful analysis. The EAT held that the Employment Tribunal had not erred in law or otherwise reached a perverse conclusion in respect of their findings as to the reason for dismissal, the justification of instant dismissal as a sanction, the question of delay, or the significance of double jeopardy.

In fact the double jeopardy argument was advanced in a different and more nuanced way before the EAT than it had before the Employment Tribunal. It was put on the basis that the doctrine of res judicata applied to the simplified procedure with the effect that the Council were estopped as a matter of law from reopening the disciplinary process at all so that the dismissals were necessarily unfair. The EAT rejected that submission and held, after considering authority, that the simplified procedure did not constitute an adjudication between the parties so as to engage the res judicata doctrine.

A second and related ground was that conducting the second procedure constituted an abuse of process. All the charges which were relied upon at the second procedure ought to have been made, if they were going to be made, as part of the initial disciplinary process, and it was abusive not to do so. The EAT did not accept that this doctrine was applicable either; the simplified procedure did not constitute litigation so as to found a relevant "process" for the purposes of the doctrine.

The EAT accepted that the question whether the Council ought to have taken the second disciplinary action was relevant to the fairness question, as the Employment Tribunal had accepted, but it did not compel a finding of unfairness. Here the majority gave cogent reasons why it was fair in the particular circumstances of this case to re-open matters and the EAT could not gainsay that conclusion.

The grounds of appeal.

The appellants concentrate their fire power on the double jeopardy submission, although there are different strands to the argument. Permission was given by Laws LJ to pursue these grounds. He refused permission on another ground, relied upon only by Mrs Christou, alleging bias. This was not argued before the Employment Tribunal and the EAT refused to allow the appellants to run it, not least because it might require fresh evidence. The appellants have sought permission to renew that ground. It is a discrete point and I deal with it at the end of this judgment.

Ms Monaghan QC, counsel for the appellants in this court (but not below), submitted in a skilful argument that the doctrine of res judicata applied so as to bar the second disciplinary process, because essentially the same charges were advanced in the second more formal procedure as had been relied upon in the simplified procedure, with no fresh evidence. This gave rise to a cause of action estoppel. Since the second procedure ought not to have taken place, it should be ignored and it followed that the dismissal was inevitably unfair. There is no general public interest exception which can modify the strict application of the res judicata doctrine so as to justify reopening disciplinary matters which have already been determined, as Lord Clarke of Stone-cum-Ebony recently affirmed in the Supreme Court in R (On the application of Coke-Wallis) v Institute of Chartered Accountants in England and Wales [2011] 2 AC 146 paras 47-51. Accordingly, if the first decision was res judicata, that was the end of the matter even if the court considered that the allegations against these appellants raised public interest concerns which the first procedure had not properly recognised or embraced.

A second and related argument is that it was an abuse of process to subject these appellants to a second set of procedures. Whilst Ms Monaghan accepts that this doctrine does not, like res judicata, create an absolute barrier to cases being reopened, she submits that it ought to have precluded it here. The parties had expressly agreed to the use of the simplified procedure – it could not be used otherwise – and the appellants had waived their rights to appeal the sanction imposed; it was an abuse to undermine that agreement.

Third, the appellants contend that even if a second bite of the cherry was in principle legitimate, the majority failed to give adequate or cogent reasons why it was fair to allow the matter to be re-opened in the circumstances of this case. In particular, they made the error of inferring that the Council must have been justified in re-opening the matter because their conclusion that the acts of misconduct justified summary dismissal demonstrated that the simplified procedure was inadequate. This was circular and unacceptable reasoning.

I will consider each of these issues in turn.

The res judicata point.

The doctrine of res judicata provides that where a decision is pronounced by a judicial or other tribunal with jurisdiction over a particular matter, that same matter cannot be re-opened by parties bound by the decision, save on appeal. A party can set up an estoppel against his opponent to prevent him from seeking to re-open what has already been determined. This is a rigorous rule with few exceptions (fraud is one).

The twin principles underlying this doctrine have been often espoused: they are the need for finality in litigation and that a party should not be vexed by being twice subjected to the same litigation. Lord Maugham LC described them in these terms in New Brunswick:

"The doctrine of estoppel is one founded on considerations of justice and good sense. If an issue has been distinctly raised and decided in an action, in which the parties are represented, it is unjust and unreasonable to permit the same issue to be litigated afresh between the same parties or persons claiming under them."

There is no doubt that some domestic tribunals set up by contractual agreement will constitute judicial bodies whose determinations will be judicial in the relevant sense. The leading text on the subject, Res Judicata, by Spencer Bower and Handley observes in para 2.05 that:

"Every domestic tribunal, including an 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."

In Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273, the doctrine was held to apply to a determination of a planning application. Lord Bridge, with whom the other members of the appellate committee agreed, observed that the principle will apply:

"where a statute has created a specific jurisdiction for the determination of any issue which establishes the determination of any issue which establishes the existence of a legal right…unless an intention to exclude the principle can properly be inferred as a matter of construction of the relevant statutory provisions."

Ms Monaghan submits that a manager imposing a sanction under the simplified procedure was invested with authority to determine a dispute and therefore constituted a judicial tribunal for the purposes of the rule. This was so notwithstanding the relatively informal nature of the process. She concedes that there is no authority to support the proposition that internal employment disciplinary procedures will attract the operation of the doctrine, but neither is there one which denies it. Her case is that at least in circumstances where the procedures are contractual in origin, as they are in this case, the authorities are consistent with her submission that the doctrine applies.

In support of this submission she relies on the authority of the decision of the High Court of Australia in Meyers v Casey [1913] HCA 50; (1913) 17 CLR 90. In that case the plaintiff was the owner of a horse who ran in races under the jurisdiction of the Victoria Racing Club. He was disciplined by the stewards and appealed to an appeal committee who upheld his disqualification. The High Court held that the committee had jurisdiction to hear the appeal and that its decision was res judicata and was binding (even if wrong) unless and until successfully appealed.

Recently Lord Clarke giving judgment in the Supreme Court in the Coke-Wallis case, was concerned with the question whether the principle of res judicata applied to a disciplinary committee of the Institute of Chartered Accountants which was set up by the byelaws of a Charter. He concluded that it did. Lord Clarke observed that the byelaws were akin to statutory provisions but added:

"…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"

He cited the Meyers case in support of that proposition.

Ms Monaghan submits that there is no difference between contractual domestic disciplinary tribunals of the kind which regulate sporting and professional activities and the disciplinary body established by contractual agreement by the parties to an employment contract. She submits that the principles of finality and fairness to a party are equally apposite here.

I do not accept this submission. In my judgment it is wrong to describe the exercise of disciplinary power by the employer as a form of adjudication. The purpose of the procedure is not "a determination of any issue which establishes the existence of a legal right", as Lord Bridge put it in Thrasyvoulou, nor is it properly regarded as "determining a dispute".

In the employment context the disciplinary power is conferred on the employer by reason of the hierarchical nature of the relationship. The purpose of the procedures is not to allow a body independent of the parties to determine a dispute between them. Typically it is to enable the employer to inform himself whether the employee has acted in breach of contract or in some other inappropriate way and if so, to determine how that should affect future relations between them. It is true that sometimes (but by no means always) the procedures will have been contractually agreed, but that does not in my judgment alter their basic function or purpose. The employer has a duty to act fairly and procedures are designed to achieve that objective. The degree of formality of these procedures will vary enormously from employer to employer. But even where they provide apanoply of safeguards of a kind typically found in adjudicative bodies, as is sometimes the case in the public sector in particular, that does not alter their basic function. It is far removed from the process of litigation or adjudication, which is in essence where this doctrine bites.

In my judgment, a case which is analogous to this is Mattu v University Hospitals of Coventry and Warwickshire NHS Trust [2010] EWCA Civ 641; [2012] IRLR 661 in which this court held that disciplinary procedures operated by an employer were not "judicial proceedings" within the meaning of Article 6 of the European Convention on Human Rights because the employer was not by that process determining civil rights. I said this (para.101):

"The decision to dismiss pursuant to a disciplinary process involves a claim by the employer that he is lawfully exercising a contractual right. He is not purporting to act like a judge; he is protecting his own interests under the contract, albeit that this necessarily involves finding facts and interpreting the scope of the contract. He is asserting a right rather than determining it."

I recognise that Mattu was concerned with what was at least in form a different question. But in substance I think that the Article 6 issue is virtually identical to the question whether the determination of the disciplinary body is res judicata. If the process is judicial and gives rise to a binding adjudication, it involves determining rights in the same way as a court does. Properly analysed it does not seem to me that this is what the employer is doing.

This is not to say that the doctrine of res judicata could never apply between employer and employee. It would, in my judgment, be open to an employer to agree that, say, a bonus payable to employees should be determined by an independent arbitrator and I do not see why in principle the doctrine should not apply to any such determination. But that would not be the natural inference to draw whenever the employer adopts and applies disciplinary procedures staffed by his own personnel. The critical question is not the formality of the procedures, but rather whether they operate independently of the parties such that it is appropriate to describe their function as an adjudication between the parties.

Having said that, the fact that the simplified procedure is so far removed from any kind of adjudicative process reinforces the conclusion that the doctrine of res judicata is inapplicable here. In a loose sense it may be that a disciplinary body set up by an employer can be described as a domestic tribunal but it is, in my judgment, far removed from the professional or sporting bodies of the kind found in the Meyers and Coke-Wallis cases where the disciplinary body regulates the conduct of members of the profession or sport concerned who stand on an equal footing with each other.

The doctrine of abuse of process.

The appellants submit that even if the doctrine of res judicata is not directly applicable, the related doctrine of abuse of process operates. The particular kind of abuse of process in issue in this appeal is that first identified by Sir James Wigram VC in Henderson v Henderson (1843) 3 Hare 100 at p. 114:

". . . I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time."

The scope of this doctrine, and its relationship to, and point of departure from, the doctrine of res judicata, was set out succinctly and with clarity by Lord Millet in Johnson v Gore Wood pages 58-59:

"Sir James Wigram did not consider that he was laying down a new principle, but rather that he was explaining the true extent of the existing plea of res judicata. … Later decisions have doubted the correctness of treating the principle as an application of the doctrine of res judicata, while describing it as an extension of the doctrine or analogous to it. In Barrow v. Bankside Members Agency Ltd. [1996] 1 W.L.R. 257, Sir Thomas Bingham M.R. explained that it is not based on the doctrine in a narrow sense, nor on the strict doctrines of issue or cause of action estoppel. As May L.J. observed in Manson v. Vooght [1999] BPIR 376 at p. 387, it is not concerned with cases where a court has decided the matter, but rather cases where the court has not decided the matter. But these various defences are all designed to serve the same purpose: to bring finality to litigation and avoid the oppression of subjecting a defendant unnecessarily to successive actions. …

….. the difference to which I have drawn attention is of critical importance. It is one thing to refuse to allow a party to relitigate a question which has already been decided; it is quite another to deny him the opportunity of litigating for the first time a question which has not previously been adjudicated upon. This latter (though not the former) is prima facie a denial of the citizen's right of access to the court conferred by the common law and guaranteed by Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4th. November 1950). While, therefore, the doctrine of res judicata in all its branches may properly be regarded as a rule of substantive law, applicable in all save exceptional circumstances, the doctrine now under consideration can be no more than a procedural rule based on the need to protect the process of the Court from abuse and the defendant from oppression. In Brisbane City Council v. A.-G. for Queensland [1979] AC 411 at p. 425 Lord Wilberforce, giving the advice of the Judicial Committee of the Privy Council, explained that the true basis of the rule in Henderson v Henderson is abuse of process and observed that it:

". . . ought only to be applied when the facts are such as to amount to an abuse: otherwise there is a danger of a party being shut out from bringing forward a genuine subject of litigation." "

After referring to features of the particular case, Lord Millett continued:

"Insofar as the so-called rule in Henderson v. Henderson suggests that there is a presumption against the bringing of successive actions, I consider that it is a distortion of the true position. The burden should always rest upon the defendant to establish that it is oppressive or an abuse of process for him to be subjected to the second action."

It follows that even if this doctrine is applicable, it does not provide an automatic bar to a second disciplinary process provided that it would not be abusive or oppressive to take that step. Moreover, the burden is on the party asserting abuse of process to establish it.

Which doctrine is applicable here?

The appellants say that the doctrine applying here is res judicata because the charges in the second proceedings were essentially the same as those in the simplified procedure. This is a case where the court has already decided the matter rather than one where it has not. I do not agree. It is true that the factual substratum was the same for all the charges but the particular focus of complaint in the second proceedings is very different. Indeed, it is precisely because they are different, the first proceedings focusing on procedural errors and the second concentrating much more firmly on substantive errors of judgment and breaches of the care plan, that Mr Young in his report considered that it was justified to institute fresh proceedings. In my judgment this would be classic Henderson v Henderson territory, if that principle were engaged at all.

In fact I do not think that it is strictly applicable in a case of this kind, any more than the doctrine of res judicata. Essentially they are related doctrines operating in the area of adjudication. But it is perhaps of little moment whether this doctrine applies or not. When a tribunal is considering whether the dismissal is fair, it will perforce have to ask itself, as this Employment Tribunal did, whether it was fair to institute the second proceedings at all. That, it seems to me, is essentially the same question as whether it is an abuse of process to reopen the matter. At least, I find it difficult to conceive of a case where a tribunal could consider that it is an abuse of process but is nonetheless fair. Indeed, since the onus is on the employer to establish that a dismissal is fair, whilst it would be on the employee to show abuse of process, the unfair dismissal test is if anything more favourable to the employee.

Res judicata: would the dismissal necessarily be unfair?

I would only add that even if this were a case of res judicata, I accept the submission of Mr Carr QC, counsel for the Council, that it would not follow that a dismissal effected in breach of that doctrine would necessarily and in all circumstances be unfair.

The complaint of unfair dismissal arises out of an actual dismissal. In this case it is taken as a result of the second (and on this premise) illegitimate process. Section 98 of the Employment Rights Act still requires the tribunal to find the reason or principal reason for that dismissal and to ask whether the employer acted reasonably in all the circumstances in treating that reason as a fair reason. The tribunal cannot ignore the dismissal and the circumstances giving rise to it simply because had there been no second process there would have been no dismissal at all. Plainly the fact that there is a second dismissal which on common law principles should never have been carried out would be relevant, and no doubt highly relevant, when assessing the question of fairness. But Mr Carr submits, and I agree, that there is no reason to assume that it should be decisive of the fairness issue in every case.

This is in principle no different to other cases where dismissal is effected in breach of some legal obligation imposed on the employer, and yet the tribunal must still consider whether or not it is fair. For example, the dismissal may be a constructive dismissal resulting from a repudiatory breach of contract by the employer, but that will not necessarily render it unfair: see Savoia v Chiltern Herb Farm [1982] IRLR 166, para 13 per Waller LJ. Or it might involve a breach of a contractual disciplinary procedure but again that is not determinative of the fairness question: see Westminster City Council v Cabaj [1996] ICR 969, 970-971 per Morritt LJ. No doubt in most cases a tribunal would find that a dismissal in breach of the res judicata principle would be unfair - if only because most cases of that kind can also be said to be an abuse of process - but ultimately that is a matter for the tribunal to decide having regard to all the circumstances of the case.

Were there proper reasons for finding that it was fair to subject the appellants to double jeopardy?

The final strand of the appeal is the contention that even if in principle a second disciplinary process was justified, the majority failed to provide any legitimate reason why that was so in this case. More to the point, it is alleged that the reason actually given in paragraph 27 (reproduced at para 25 above) is flawed. The majority has inferred that the original disciplinary action was inadequate because it concluded that dismissal following the second procedure was within the range of reasonable responses for the misconduct established.

I agree that this analysis is a non-sequitur. It does not follow logically that because dismissal was found to be within the band of reasonable responses, a failure to dismiss was not within that band. In any event it would mean that it would never be unfair to subject the employee to double jeopardy provided a tribunal is ultimately satisfied that dismissal is in fact an acceptable sanction for the misconduct in question. I do not think that can be right and in practice it would give no weight to the double jeopardy principle. No doubt the gravity of the fresh charges will be relevant to the question whether it is fair to reopen proceedings, and the graver the charges the more likely it is that dismissal will be a reasonable sanction.

But it does not follow that whenever dismissal is reasonable, that suffices to show that the initial procedure was defective. So I accept that this was not a relevant or proper factor to justify the second disciplinary process. This is a relatively minor point, however, because the Tribunal could in my view quite properly have said that the first process was inadequate because it did not allow the employer even to consider imposing dismissal, notwithstanding the grave consequences of the misconduct. That was effectively Mr Fallon's opinion, and it led him to recommend that fresh disciplinary proceedings should be taken.

Moreover, in my judgment it is plain from reading paragraphs 26 and 27 together that the majority has given other adequate reasons why in the circumstances they concluded that the Council was justified in re-opening this issue. The approach of the minority member, and her view that it was unfair to re-open the case, was set out at length in paragraph 26 of the decision. These were powerful points but they were obviously considered by the majority not to be a sufficient basis for establishing unfairness. Paragraph 27 then gives the majority's view; it seems to me that the majority is there saying that the justification for reopening the case lay in the fact that the allegations of misconduct were very serious because they involved a risk to a member of the public, and that new management were entitled to take a different view about the gravity of the conduct In my judgment that this was a proper and sufficient basis for the majority's conclusion that the dismissals were fair notwithstanding that the double jeopardy principle was infringed.

The renewed permission application; bias.

The final issue relates only to Mrs Christou. The submission is that the evidence adduced before the Tribunal demonstrates that one of the councillors hearing her appeal, Councillor Dogus, was either actually biased or at least gave the impression of bias. The factual basis in support of this ground is found in the following paragraph of the Tribunal's decision (para 15.59):

" Before they began their deliberations on 15 March 2010, Mr Dodds' Panel considering Mrs Christou's appeal heard closing submissions from the parties representatives. During a comfort break, Councillor Dogus told Mr Dodds that she was upset and could not make a decision that the case was not proven. She said that she was going to speak to the leader of the Council (Councillor Kober) to get advice. She apparently did so and on her return she told Mr Dodds that she had discussed the case with Councillor Kober and that Councillor Kober had agreed that she could not make a decision that did not involve the dismissal of Mrs Christou. Mr Dodds was angry with what Councillor Dogus had said; he informed the other member of the Panel Councillor Whyte and he said that he would speak to Councillor Kober. We heard from Councillor Kober. She denied that she had advised Councillor Dogus in the terms alleged by Councillor Dogus, but that Councillor Dogus had telephoned her in the middle of the afternoon of 15 March and had said only that she felt unable to reach a decision and was distracted because her mother was ill. Councillor Kober went on to say that, since she had a very important decision to make, she should not feel under pressure to go ahead with deliberations and that she was entitled to ask for the session to be rearranged. She encouraged her to tell the Panel members that the reason for her wanting to leave was her mother's illness rather than that she felt unable to reach a decision. The tribunal did not hear from Councillor Dogus. Mr Dodds' evidence continued that he spoke after this to Councillor Kober himself and that she assured him that she had not sought to persuade Councillor Dogus in any way to reach a particular decision. Mr Dodds appears to have been satisfied by what Councillor Kober told him. We find that Mr Dodds was an entirely straightforward witness, whose evidence we have no hesitation in accepting. Given that, we think that, if he was satisfied that Councillor Kober had not sought to influence Councillor Dogus' decision in any way, then we are content to accept that that is the position. What seems to be clear is that Councillor Dogus herself felt under pressure to reach a decision to find against Mrs Christou. It is also clear however that that decision was not made that day and was put off until 24 March."

The finding, therefore, is not that Councillor Kober placed any pressure on Councillor Dogus, but that for whatever reason on 15 March (some nine days before the final decision to dismiss was taken) Councillor Dogus felt under pressure to reach a decision against Mrs Christou.

Mrs Christou submits that if one of the councillors felt unable to reach an independent and genuine decision on the evidence, the dismissal could not be fair. Alternatively, the Tribunal should have given considerable weight to this factor in assessing fairness and they do not appear to have done so.

Initially, the case was put principally on the basis that this material gave the appearance of bias but in my view, if the material establishes anything, it is actual bias, and that is how Ms Monaghan advanced the case in her oral submissions. It is difficult to see how a dismissal could be fair if one of the three individuals determining whether to dismiss is unable for whatever reason to exercise a genuine and independent judgment. In order to be a fair dismissal an employer must at the very least have a genuine belief that the alleged misconduct has been committed. If Councillor Dogus was predisposed to finding Mrs Christou guilty of the charges irrespective of the evidence, that genuine belief is lacking. Moreover, because of the influence that she might exercise on the other two councillors, it would taint the whole process even if the Panel were unanimous. In the event, since the dismissals were considered to be fair only by a majority of the councillors, her input was in fact critical.

However, the problem facing the appellants in relation to this ground of appeal is that it was not advanced before the Employment Tribunal. The EAT refused to allow it to be employed before them on the grounds that its resolution would, or at least might, require fresh evidence. Where that is the position, it is in accordance with well established authority that it is only in the most exceptional case that the point can be taken for the first time on appeal: see e.g. Glennie v Independent Magazines (UK) Ltd [1999] IRLR 719. Mrs Christou disputes the finding that fresh evidence might have been required; she says that all the relevant evidence was before the Tribunal.

I do not accept that submission. The Tribunal accepted that Councillor Dogus felt under pressure to find against the appellant more than a week before the decision was ultimately taken. However the question is whether she was in the same frame of mind when the decision was actually taken, or whether at that stage she felt able to resist the pressure and to assess the evidence in good faith. I think that the last sentence of the paragraph quoted above indicates that the Tribunal was conscious that the position might well have changed. It is impossible to know whether she was of the same mindset or not. I do not see how the Tribunal could properly make a finding about that without Councillor Dogus giving evidence. Had this ground of appeal been pursued from the beginning, the Council may well have thought it prudent to call her or alternatively the appellants might have applied for a witness order against her. But that was not done. In my judgment, it would be wrong to draw the very serious inference that the evidence before the Tribunal established any actual bias, and that Councillor Dogus had fallen so short of her duty, without hearing from her or at least giving her the opportunity to meet a clear allegation to that effect. Accordingly, I consider that the EAT were entitled to refuse permission to argue this point for the reasons they gave, and that Laws LJ was right to refuse permission to appeal.

For these reasons, it follows that both the appeal and the renewed application for permission to appeal fail.

Lord Justice McCombe:

I agree.

Lord Justice Laws:

I also agree.