Concluded disciplinary proceedings could be reopened and dismissal fair (EAT)

James Williams

The EAT upheld a tribunal’s decision that it was fair to dismiss an employee after reopening a previously concluded disciplinary process that had led to a final written warning. The case had unusual facts, and the Court of Appeal had held in a previous case that there is no absolute rule against double jeopardy.
The claimant was Associate Director of Transformation in an NHS Trust who was disciplined and given a final written warning for incidents including bullying and victimising an employee by seeking to interfere in the investigation of her sexual orientation discrimination complaint, and racial harassment and discrimination against another employee.
Subsequently, a Care Quality Commission (CQC) inspection had concluded that bullying was “rife” at the Trust and it was put into special measures and another NHS Trust took over.  The Managing Director of the new Trust felt there was an issue as to whether the claimant was a fit and proper person to provide leadership on equality issues. Following a further disciplinary hearing held by the new Trust’s CEO, she was dismissed, on grounds that her conduct had “fatally undermined” her ability to perform that leadership role.
An employment tribunal rejected the claimant’s unfair dismissal claim. She appealed to the EAT, arguing (among other things) that the new Trust should not have reopened the disciplinary proceedings.
The EAT applied Christou v London Borough of Haringey [2013] EWCA Civ 178 in which the court had held that res judicata did not apply in disciplinary proceedings, and that the earlier disciplinary outcome is just part of the circumstances to be considered when determining whether dismissal was fair. The EAT noted that it is unusual to reopen disciplinary proceedings, but the tribunal had made no error of law and had given clear reasons for its decision on fairness, which included the findings of the CQC report, the claimant’s continuing unwillingness to accept any responsibility, and the new CEO’s conclusion that “it was not objectively credible or acceptable” for the claimant to lead on the important issue of race equality in the light of her conduct.
The EAT also upheld the tribunal’s view that it did not matter whether the reason for dismissal was categorised as “conduct” or “some other substantial reason”. The essential question was whether dismissal was within the range of reasonable responses.

Case: Lyfar-Cisse v Western Sussex University Hospitals NHS Foundation Trust [2022] EAT 193 (30 December 2022) (Bourne J).

James Williams – Solicitor

James Williams

I am a qualified Employment Law and HR Solicitor. I specialise in acting for schools and advise on all aspects of employment law and HR including attending employee meetings, advising senior leaders, conducting redundancy consultations, drafting contracts of employment, advising on policies and procedures and negotiating settlement agreements.