The Employment Appeal Tribunal (EAT) has held that it is not necessarily unfair to dismiss an employee after reopening a closed disciplinary process in which the decision was not to dismiss. We explore the ramifications of Lyfar-Cissé v. Western Sussex University Hospitals NHS Foundation Trust and others  below.
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.
The case of Christou v. London Borough of Haringey (which was cited in the Lyfar-Cissé case) decided thatemployers are only permitted to reopen closed disciplinary procedures where there is sufficient justification to do so. The court did say that the principle of res judicata – once a matter has been judged, it cannot be relitigated except on appeal – which applies in the courts, does not apply to disciplinary proceedings. Accordingly the original disciplinary outcome is only one consideration in determining whether the ultimate dismissal was fair.
In the present case Dr Lyfar-Cissé (the Claimant) had been employed in various roles by the Brighton & Sussex University Hospital NHS Trust (the Second Respondent) from 1985 until her dismissal in September 2017. At the time of her dismissal, she was employed as an Associate Director of Transformation and Chair of the BME Network. As such, her main responsibility was improving race equality in the Second Respondent. From 2008 onwards, she made several protected disclosures which resulted in multiple claims being brought against the Western Sussex University Hospitals NHS Foundation Trust (the First Respondent).
In 2016, Dr Lyfar-Cissé became the subject of disciplinary proceedings as a result of 19 allegations raised against her by colleagues, including accusations of bullying, victimisation, racial harassment and discrimination. On the recommendation of the disciplinary panel, the Claimant was issued a final written warning.
At the time of the disciplinary investigation, the Second Respondent was under inspection by the Care Quality Commission as a result of concerns raised about the provision of safe, well-led care by the Second Respondent. These concerns included allegations that bullying by its staff was “rife“. In August 2017, the Care Quality Commission found the Second Respondent to be “inadequate“with a “fractured and damaged approach to equality and diversity“. In 2017, the First Respondent’s executive team took over leadership of the Second Respondent. 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 Second Respondent 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, the Second Respondent made the decision to dismiss the Claimant with immediate effect.
From the Employment Tribunal…
The Claimant brought claims against both Respondents for unfair dismissal, automatic unfair dismissal by reason of victimisation, and detriments for making a protected disclosure. She alleged that her dismissal was unfair on the grounds that the principal reason for it was the protected disclosures she had previously made, and that she had been victimised by virtue of making such disclosures.
The Employment Tribunal (ET) considered the essential question to be whether the dismissal was fair in all the circumstances. On considering the facts of the case, the ET dismissed the claim on the basis that:
- the Second Respondent had conducted a fair and reasonable disciplinary process;
- the decision to dismiss was not predetermined;
- it was reasonable for the employer to conclude that it was not appropriate for the Claimant to be responsible for race equality having been found to have discriminated, harassed and victimised others;
- dismissal was “within the range of reasonable responses” on the basis that the Claimant had not accepted any responsibility for her actions, the findings of the Care Quality Commission’s report, the particular nature of her role and the findings of the investigation;
- alleged protected disclosures were not material to the decision to dismiss, so it was not an automatic unfair dismissal; and
- the alleged detriments had nothing to do with any protected disclosures or characteristics, and therefore the whistleblowing and discrimination claims failed.
Interestingly, the ET characterised the reason for dismissal as Some Other Substantial Reason (SOSR) rather than conduct.
…to the EAT
The Claimant appealed the ET decision on seven grounds, including the following:
- the Second Respondent should not have reopened closed disciplinary proceedings;
- the ET erred by not sufficiently explaining its finding of SOSR and, in concluding that the difference was not material, whether the reason for dismissal was conduct or SOSR;
- the ET erred in not finding that the Second Respondent, in deciding to dismiss, had impermissibly failed to apply its disciplinary policy; and
- the ET did not deal adequately with the contention that some managers in similar circumstances, but with no history of protected acts or disclosures, had been treated more favourably and that the Claimant’s less favourable treatment amounted to victimisation.
The EAT upheld the ET’s decision, finding that, whilst it is unusual for an employer to reopen concluded disciplinary proceedings, it does not necessarily mean that the dismissal will be unfair, provided that there is a sufficient justification. The EAT held that the material question is always “whether in all the circumstances the dismissal was fair or unfair” based on the facts of the case. The EAT found that the ET correctly regarded the circumstances of the case and agreed that the Respondents’ conduct was reasonable and fair in the circumstances. Further, the EAT confirmed that it was not critical whether the reason for dismissal was categorised as conduct or SOSR – it could be either – as the essential question was whether the decision to dismiss was within the range of reasonable responses. The EAT held that the ET had therefore ultimately correctly found that the decision to dismiss was reasonable in the circumstances.
What does this mean for employers?
The judgment offers interesting guidance on what will be considered when determining whether an employer’s conduct isreasonable and ultimately”in all the circumstances [whether] the dismissal was fair or unfair“. It is a reminder that there is no one-size-fits-all approach or set guidelines, and that each case will turn on its facts. Further, the judgment confirms that a harsher sanction than that originally imposed may, in some circumstances, be reasonable if reopening disciplinary proceedings. It is, however, crucial to note that the facts of this case are complex and small differences could result in an entirely different decision.
We urge employers to act with caution if they are considering whether to reopen closed disciplinary proceedings. This judgment does not give free rein for employers to revisit disciplinary decisions to increase the severity of the outcome. The ruling is fact-specific with regards to the nature of the Respondents’ business, the Claimant’s role having a specific focus on improving race equality, the Claimant’s previous protected disclosures, as well as the allegations against her by her colleagues. As such, it is not simple nor risk-free for an employer to rely too heavily on this case.