The Employment Appeal Tribunal has held in the case of Lyfar-Cissé v. Western Sussex University Hospitals NHS Foundation Trust and others  that reopening of concluded disciplinary proceedings did not render a dismissal unfair.
In this case, amongst other claims for whistleblowing, the Claimant brought a claim for unfair dismissal. Amongst the other issues to be determined, the Tribunal was obliged to consider whether it was permissible for her employer in 2017:
- to re-open a disciplinary process concluded in 2016 and which resulted in a final written warning; and
- overturn this decision and impose the harsher sanction of dismissal.
The Claimant was employed as an Associate Director of Transformation and Chair of the BME Network, and her main responsibility was improving race equality within the Trust. Approximately one year prior to her dismissal, she was subject to disciplinary proceedings relating to allegations of bullying and race discrimination, which resulted in a final written warning. However, at the time of the disciplinary investigation, the Trust was under inspection by the Care Quality Commission as a result of concerns raised about the provision of safe and well-led care.
In August 2017, the Care Quality Commission concluded its investigation and found the Trust to be “inadequate“ with a “fractured and damaged approach to equality and diversity“. At the time, there was a change in leadership and with the new leadership in place, the disciplinary against the Claimant was reopened because of:
- the findings of the Care Quality Commission’s report;
- the Claimant’s continued unwillingness to accept any responsibility for her actions; and
- the new CEO’s view that it was not appropriate for the Claimant to lead on race equality issues in light of her actions.
On investigation of these matters, the new leadership considered that the Claimant’s ability to perform her leadership role was “fatally undermined by having been found to act in the way that she has“. As a result, in September 2017, the Claimant was dismissed with immediate effect.
Whilst it is generally considered good practice that once a disciplinary process has been concluded, it will not be reopened unless there is a very good reason for doing so, in this case, the Employment Appeal Tribunal found that the employer’s decision to dismiss the Claimant was not unfair.
In considering the facts of this case, the Employment Appeal Tribunal concluded that in the circumstances of this case, there was sufficient justification to re-open the disciplinary process and impose the harsher sanction of dismissal.
What does this mean for employers?
This decision offers very interesting guidance for employers as to what is sufficient justification for re-opening a disciplinary process. However, the circumstances of each case will differ, and this is a case in which the nature of the Claimant’s role, the allegations made against her and the context of the Care Quality Commission involvement were all highly relevant to the Trust’s decision to dismiss her. It is not, therefore, a straight forward issue, or risk-free for an employer to rely too heavily on this case if deciding to re-open a disciplinary process and impose a stricter disciplinary outcome.
If you would like further advice about disciplinary procedure, please do not hesitate to contact our Employment Team at firstname.lastname@example.org.
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