so commented the heroine in the classic film-noir flick “Double Jeopardy”. She was found to have been wrongly convicted of killing her husband, not least because he was still very much alive. After hurriedly carrying out some legal research, she discovered that she could not be tried for the same crime twice, and so decided to kill her husband (properly this time) and yet be untouchable in the eyes of the law – hence the quotation above and the legal principle of double jeopardy.

However, like many other time-honoured legal principles, the rule against double jeopardy has to some extent been eroded, as seen in the recent case of Christou and Ward v Haringey in the Employment Appeal Tribunal.

The background to the case was tragic. It involved the high profile killing of a toddler, Baby P, by his mother and two men.  The case was commented upon extensively by the press in the UK. The finger of blame quickly shifted from the child’s carers to the local government unit, Haringey, and the two social workers with care and responsibility for the toddler, namely Ms Ward and Ms Christou.

Following the death of Baby P both social workers were taken through Haringey’s “Simplified Procedure” disciplinary process, largely on the basis that they had failed to properly follow internal procedures, and were issued with written warnings, the most serious sanction possible under this particular disciplinary process. 

However, there was subsequently a change of leadership at Haringey and that new management took the view that the disciplinary sanction imposed upon Ms Ward and Ms Christou had been insufficient. They were accordingly taken through fresh disciplinary proceedings in relation to the same subject matter as before, namely the failings around the service provided to Baby P, but on this occasion both were dismissed for gross misconduct.

On appeal, the Employment Appeal Tribunal confirmed the dismissals were fair, accepting that an employee may lawfully and appropriately be disciplined twice in respect of the same matters. However, it added strong words of caution, noting “the circumstances in which it may be held to be reasonable for an employer to change their view as to the appropriateness of a disciplinary sanction previously imposed and to embark on second disciplinary proceedings on the same facts are likely to be extremely rare… these observations are not to be taken as any encouragement to do so”.

The lesson for employers is that it will be only be in exceptional circumstances that disciplining an employee twice for the same offence will be fair, but it is possible.  The most obvious case would be where evidence came to light after the first go which showed the offence (or its consequences) to be materially more serious than had originally been thought.  It would be both surprising and regrettable if those circumstances included a politically expedient revisiting of an earlier case just because of the continued baying of the tabloid press.