Disciplining Twice for the Same Offence?

In most cases, an employee would not be disciplined twice for the same offence. If they were, it may be argued that it was an abuse of process.

Nevertheless, if there are unusual circumstances and an employer is looking to reopen disciplinary proceedings that had previously been resolved, would any subsequent disciplinary decision be deemed inevitably unfair?

In this guide for HR and managers, we explain what the law says about re-disciplining someone for the same issue.

 

Can employers rediscipline an employee for the same offence?

 

If new evidence emerges after a disciplinary procedure has concluded, the employer may reconsider the case if it sees fit. A second disciplinary hearing should be arranged so that the employee’s concerns can be addressed and the final decision can be made in light of all the information.

It has long been held that employers cannot discipline or dismiss an employee based on the same set of circumstances that were the basis for an earlier disciplinary action.

However, in Christou and Ward v London Borough of Haringey, the EAT noted that it is permissible for an employer to take an employee through a second disciplinary procedure on the same facts where the employer has changed its view of the misconduct and believes that a disproportionately light disciplinary sanction was previously delivered. The EAT emphasised that “very rare” cases exist in which this would be acceptable.

 

Case law

 

The Court of Appeal ruled in the case of Christou v London Borough of Haringey (2013) that there was no legal principle barring a second disciplinary process for the same offence. It also held there was no concept of ‘double jeopardy’ in internal disciplinary proceedings

This claim related to the ‘Baby P’ case, whereby one of the social workers on the case brought a claim for unfair dismissal on the grounds that she had already been taken through a disciplinary procedure in respect of her handling of the Baby P case.

The Court of Appeal dismissed the appeal on all grounds. First, even though the facts considered in the first set of proceedings were the same as those considered in the second, the particular focus of the second set of proceedings was different. It was precisely because they were different, the first proceedings focusing on procedural errors and the second concentrating much more firmly on substantive errors of judgement and breaches of the care plan, that it was considered justified to institute fresh proceedings. The question of whether it was an abuse of process to institute the second set of proceedings was essentially the same question as to whether the dismissals were unfair, and the conclusion was that the dismissals were fair. Finally, there was a proper and sufficient basis for the majority’s conclusion that the dismissals were fair notwithstanding that the double jeopardy principle was infringed.

In Dr Vivienne Lyfar-Cissé v Western Sussex University Hospitals NHS Foundation Trust and others, the Employment Appeal Tribunal considered if a subsequent decision to dismiss the employee following a second disciplinary process would be automatically unfair.

Following a number of complaints brought against her by staff, the claimant had been subject to disciplinary proceedings by her NHS employer, resulting in a final written warning.

However, a new management team was installed for the trust, members of which raised concerns about the claimant was fit and proper for her role. A further disciplinary hearing was held and it was decided that the claimant should be dismissed due to misconduct that had “fatally undermined” her ability to perform her role.

The claimant brought a number of claims, including unfair dismissal due to being disciplined twice for the same issue.

The EAT found that although reopening disciplinary proceedings was unusual, it did not necessarily indicate that the dismissal was unfair.

The statutory criteria for unfair dismissal is whether the dismissal was fair or unfair after considering all the circumstances. The fact that there had been a previous disciplinary hearing was merely one aspect to be considered.

The findings of the new management team, along with an independent report by the CQC, both found “it was not objectively credible or acceptable” for the claimant to act in her leadership role in light of her conduct. These were accepted by the EAT as sufficient and justifiable grounds for dismissal.

The key issue for employers to establish is that the dismissal was within the range of reasonable responses.

 

Is disciplinary action within the range of reasonable responses?

 

The range of reasonable responses approach is applied to employer disciplinary investigations to assess if they are reasonable under all conditions.

What constitutes a reasonable investigation depends on the particulars of each situation. Where, for instance, the employee has admitted misconduct, less investigation is typically required than where the person’s guilt can only be deduced from circumstantial evidence. The absence of an investigatory meeting with the employee will not, by itself, render the dismissal unfair.

When determining the fairness of a dismissal, the employment tribunal is not permitted to substitute its own opinion for that of the employer. Instead, it must evaluate if the employer’s actions fall within the range of reasonable responses for a reasonable employer. In other words, even if the tribunal would not have dismissed the employee under the employer’s circumstances, the question is whether no reasonable employer could have dismissed the employee under such conditions. This approach applies not only when analysing the substantive decision to dismiss but also when assessing the procedural processes taken by the employer.

As such, exceptional circumstances woudl usually ne required for a second disciplinary procedure to be justifiable. Further, it would not necessarily lead to the dismissal following a second hearing being unfair.

 

Importance of a fair disciplinary procedure

 

Where a second disciplinary hearing could potentially result in the employee’s dismissal, the employer must ensure they follow a fair and lawful process to mitigate the risk of claims for unfair dismissal.

As a minimum, employers should follow the ACAS Code of Practice for guidance on handling disciplinaries in the workplace or follow their organisation’s own procedure, which would typically be set out in a formal disciplinary policy.

ACAS advise the following for fair and lawful disciplinaries:

 

• Employers and employees should raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions.
• Employers and employees should act consistently.
• Employers should carry out any necessary investigations, to establish the facts of the case.
• Employers should inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made.
• Employers should allow employees to be accompanied at a formal disciplinary meeting.
• Employers should allow an employee to appeal against any formal decision made.

 

In practice, a fair disciplinary procedure should therefore generally include the five following steps:

 

• A full, prompt and objective investigation into the allegations
• Written communication to the employee setting out the issue(s)
• Hearing to discuss the issue(s)
• Disciplinary decision
• Process to appeal the decision

 

The employer should decide on the best outcome based on:

 

• the findings from the investigation and meetings
• what is fair and reasonable
• what their workplace has done in any similar cases before

 

Each workplace might have its own version of disciplinary outcomes. They should be written in the workplace disciplinary policy or guidelines.

Dismissal should not be a foregone conclusion, even prior to any second disciplinary hearing. The employee should be given the opportunity at a hearing to respond to the allegations and information that has been collated during the investigation, and any other facts or circumstances that have led to the second disciplinary hearing.

Dismissal can only be fair if on the grounds of one of the following lawful reasons:

 

• Conduct/misconduct
• Capability/performance
• Redundancy
• Statutory illegality or breach of a statutory restriction
• Some other substantial reason (SOSR)

 

In relation to disciplinary proceedings, lawful grounds could include:

 

Misconduct

This is where an employee is being dismissed due to a reason related to their conduct. It should be clearly stated what constitutes misconduct within policy documentation and company guidelines. Common examples of misconduct include bullying, harassment, poor attendance, insubordination, and unexplained absence.

Gross misconduct is more serious in nature and includes acts that are very serious or have very serious effects on the business, such as fraud, violence, gross negligence, or serious insubordination.

A single act of gross misconduct can result in a fair dismissal without previous warning and without giving the employee any notice/payment in lieu. However, a dismissal for misconduct (rather than gross misconduct) will normally require a series of warnings before dismissal and the employee will be entitled to receive full notice/payment in lieu.

 

SOSR

SOSR is generally considered a ‘catch-all’ category, used where dismissals do not fit into the other four grounds for dismissal.

With no legal definition of the dismissals that can be included in this category, some typical examples include: when a client refuses to work with an employee and there is no other work that employee can undertake; if there is a personality clash that’s causing a substantial issue to the business; if there is a significant conflict of interest e.g. a senior employee has a partner who works for a competitor and is a serious threat.

Dismissals on the grounds of SOSR necessitate a robust case from the employer, as any claim to a tribunal would result in its approach, reasoning and reasonableness being thoroughly analysed and tested.

If the decision is made to dismiss, the employee should be told as soon as possible:

 

• the reasons for the dismissal
• the date the employment contract will end
• the notice period
• their right of appeal

 

Employees with at least two years’ continuous service have the right to request a written statement of the reasons for dismissal. The employer has 14 days to reply to the request, unless it is not reasonably practicable for it to do so.

Employees dismissed during pregnancy or maternity leave have an automatic entitlement to a written statement without having to request it and without any minimum service requirement.

The employer should offer the employee the right of appeal to challenge the decision if they feel the outcome is too severe
or if any stage of the disciplinary procedure was wrong or unfair.

If the employee can show their employer has not followed a correct process, or their decision to dismiss is not reasonable or proportionate, they may have a claim for unfair dismissal.

 

Need Assistance?

 

DavidsonMorris’ employment lawyers work with employers to support with all aspects of workplace disciplinary procedures. We can advise on specific matters to help your organisation ensure compliance with your legal obligations while protecting your best interests. For expert advice and support, contact us.

 

Re-disciplining for the same offence FAQs

 

Can I discipline an employee twice for the same offence?

It is generally not advisable to discipline an employee twice for the same offence unless new evidence or circumstances arise that significantly alter the situation. Doing so without valid reasons can lead to legal challenges and claims of unfair treatment.

 

What should I do if new evidence comes to light after a disciplinary decision?

If new evidence emerges that was not available during the initial disciplinary process, you may have grounds to reopen the case. However, it’s crucial to approach this carefully and ensure that the process is fair and transparent, adhering to your company’s disciplinary procedures and UK employment law.

 

Is it legal to issue a final warning and then later decide to dismiss the employee for the same offence?

Once a final warning has been issued, it generally should not be followed by dismissal for the same offence unless there is new evidence or a breach of the conditions set out in the warning. Dismissing an employee without following proper procedures could be deemed unfair dismissal.

 

What are the risks of disciplining an employee twice for the same offence?

The primary risk is that the employee may claim unfair treatment or unfair dismissal. This can lead to legal disputes and potential compensation claims. Additionally, it could damage employee morale and your company’s reputation if seen as inconsistent or unfair.

 

How can I avoid the risk of double disciplining?

To avoid double disciplining, ensure that all evidence is thoroughly reviewed before making a disciplinary decision. Document every step of the process and communicate clearly with the employee. If in doubt, seek legal or HR advice before taking further action.

 

Can an employee appeal if they believe they’ve been disciplined twice for the same offence?

Employees have the right to appeal disciplinary decisions if they believe they have been treated unfairly, including being disciplined twice for the same offence. It’s important to have a clear appeal process in place and to handle any appeals impartially.

 

What steps should I take if I’ve inadvertently disciplined an employee twice for the same offence?

If you’ve realised that an employee has been disciplined twice for the same offence, review the situation promptly. Consider retracting the second disciplinary action if it’s unjustified and communicate openly with the employee to resolve the issue. Legal or HR advice may be necessary to manage the situation appropriately.

 

Glossary

 

Term	Definition
ACAS Code of Practice	A guideline provided by the Advisory, Conciliation and Arbitration Service in the UK, offering practical advice for handling disciplinary and grievance situations in the workplace.
Disciplinary Action	Measures taken by an employer to address an employee’s conduct or performance issues, which can include warnings, suspension, or dismissal.
Employment Rights Act 1996	A key piece of UK legislation that outlines the rights of employees, including protection against unfair dismissal and entitlements to statutory notice.
Final Warning	The last step in a disciplinary process before dismissal, given when an employee’s conduct or performance has not improved following prior warnings.
Gross Misconduct	A serious violation of workplace rules or conduct that can justify immediate dismissal without notice or pay in lieu of notice.
Unfair Dismissal	A legal term for when an employee is dismissed from their job in a manner that is harsh, unreasonable, or without a fair procedure, as defined by UK employment law.
New Evidence	Additional information or facts that were not available during the initial disciplinary process, potentially justifying a reconsideration of the case.
Reopening a Case	The process of revisiting a previously resolved disciplinary case due to new evidence or other compelling reasons, ensuring fairness in the procedure.
Appeal Process	A formal procedure that allows employees to challenge disciplinary decisions, ensuring that the process is fair and just.
Legal Remedies	Actions or compensations provided by law to address a legal wrong or injury, such as reinstatement or compensation in cases of unfair dismissal.
HR (Human Resources)	The department within an organisation responsible for managing employee relations, including handling disciplinary actions and ensuring compliance with employment laws.