Crown prosecutor dismissed for “professional negligence” loses unfair dismissal claim

An Employment Judge, sitting in the London South Employment Tribunal, has handed down judgment in the case of B v CPS. The judgment is a useful first instance decision on the extent to which it is permissible for Human Resources advisers to get involved in decisions made within a disciplinary process.

The Claimant, an experienced and senior Crown Prosecutor, took over the management of a complex fraud case, Case N, in which the CPS eventually offered no evidence. This led to a complaint by the victim in that case to the Director of Public Prosecutions. A dismissing officer concluded that the Claimant had: failed to review documentary evidence properly from the date the case was allocated to him, adopted the charging decision of a previous lawyer but without reading that decision and caused papers to be served on three occasions (comprising some 16 lever arch files) without first making any assessment as to its status or admissibility and in breach of the Crown Court’s orders. This conduct was said to amount to professional negligence and treated as serious misconduct.

 

The Claimant was, at the time, already the subject of a live final written warning in respect of allegedly negligent conduct in two previous cases (the Cases of S and B). The first of these, S, had concerned the way in which the Claimant had permitted a defence counsel put inappropriate questions to a vulnerable witness within a domestic violence trial, leading to a Circuit Judge criticising the Claimant in open court for showing “poor legal knowledge and no judgment”. The second case, B, had involved the Claimant applying for a warrant against a Defendant upon his non-attendance when in fact the case had been discontinued. As a result the Defendant was arrested and taken into custody, which was said to render the CPS potentially liable for a proposed claim in damages for unlawful imprisonment.

 

Taking into account his previous warnings and the fact he had taken no responsibility for his own conduct, the Claimant was dismissed with notice.

 

Before the Tribunal the Claimant, amongst other points, focused on what he submitted was the improper influence of various HR officers on the disciplinary investigation and process and cited the EAT decision in Rhamphal v Department of Transport EAT/0352/14 and the Supreme Court decision in Chhabra v West London Mental Health NHS trust [2013] UKSC 80.

 

The Tribunal heard that the Claimant’s line manager had wanted to give the Claimant different sanctions in respect of the previous two cases but had been told by HR that he could not and so one single final written warning was issued. The Employment Judge found on the facts that it was not appropriate to look behind this warning. Applying the Court of Appeal decision in Tower Hamlets HA v Anthony [1989] IRLR 394 and the guidance in Davies v Sandwell MBC [2013] IRLR 374, it was a warning given in good faith and there was more than prima facie evidence to support the decision on the case of S, especially given the criticisms made by the Judge and evidenced within the Crown Court’s transcript, to conclude the Claimant had failed to conduct himself appropriately in Court.

 

The Claimant also challenged further HR involvement in the re-drafting of a charging letter, sent to the Claimant before his disciplinary hearing, so as to introduce the term “professional negligence”. The Tribunal distinguished the case of Rhamphal, noting that in that case the conduct of HR had been to remove exculpatory findings and change a recommendation from one of a final warning to one of summary dismissal. In the instant case, the involvement of HR had been procedural in nature and did not stray into areas of culpability. The change to the relevant letter, read as a whole, was actually in the Claimant’s favour as it also removed the term “gross misconduct” and replaced it with a charge of “serious misconduct” (the significance being that the latter could not result in a dismissal without notice). There was no evidence here that HR had gone beyond their legitimate brief. This included providing advice on a change to the appropriate charge, which was considered by the charging manager but whom did not feel bound by it.

 

The Tribunal overall found the decision to dismiss to have been within the range of reasonable responses and the Respondent had been entitled to take account of the live written warning for two offences of negligence. The Claimant has appealed the decision, and particularly the findings in relation to the Rhamphal and Chhabra cases, to the Employment Appeal Tribunal.

 

Tom Kirk represented the successful Respondent, the Crown Prosecution Service, and was instructed by the Government Legal Department.