Reopening Disciplinary Proceedings

What Must Your Consider Before Reopening Disciplinary Proceedings?

Whilst reopening disciplinary proceedings is unusual it is not impossible, for instance a previously concluded disciplinary process may be reopened because new evidence has become available. The key question is if disciplinary proceedings concluded with a warning and then were reopened because new evidence became available would a subsequent decision to dismiss necessarily be found to be unfair?

The legal test to be applied in such circumstances was considered by the Employment Appeal Tribunal in the case of Dr Vivienne Lyfar-Cissé v Western Sussex University Hospitals NHS Foundation Trust and others.

The Background

Dr Lyfar-Cissé, a clinical biochemist, had been appointed into several positions with responsibilities for improving race equality for employees and NHS service users. She was also the chair of the BME network, whose role she described as “the promotion of good race relations and the elimination of racial discrimination for employees and health service users”.

She had been subject to disciplinary proceedings that had resulted in a final written warning following complaints against her. The complaints included her refusing to take part in procedures in relation to investigations into reports of bullying and discriminatory conduct towards another employee.

At around the same time as these proceedings were being conducted, a Care Quality Commission (CQC) inspection had found numerous problems with staff relations, and as a result the trust had been put into special measures.

As part of this process, a new management team had taken responsibility for the running of the trust. Members of this team had concerns as to whether Lyfar-Cissé was a fit and proper person to continue to provide leadership on equality issues.

It was decided a further disciplinary hearing would be held, at which she was dismissed as it was concluded that her conduct had “fatally undermined” her ability to perform the leadership role.

Lyfar-Cissé issued several claims, including that her dismissal was unfair as she had been disciplined twice for the same issue.

The Tribunal Decision

It was held that while it was unusual to reopen disciplinary proceedings it would not necessarily mean the dismissal was unfair. The statutory test for unfair dismissal was whether after considering all the circumstances the dismissal was fair or unfair. The fact that there had been a previous disciplinary hearing was just one of the factors to be taken into account.

It was also noted that the Court of Appeal had previously ruled in the case of Christou v London Borough of Haringey (2013) that there was no legal principle that would bar a second disciplinary process.

The findings of the CQC report and the conclusion of the new management team that “it was not objectively credible or acceptable” for Lyfar-Cissé to lead on the important issue of race equality in the light of her conduct were sufficient to establish there were fair grounds for dismissal.

Comments

The decision highlights that while there would need to be unusual facts for an employer to be justified in reopening a disciplinary matter, it would not necessarily lead to a finding that dismissal following the second hearing was unfair.

In relation to what was then identified as the fair reason for the dismissal, it was recognised that it may have been categorised as being, in the widest sense, related to the conduct of the employee. But it may just as easily have fallen under the heading of ‘some other substantial reason’, as the reason for dismissal was the incompatibility of the employee to continue in the role given the findings that had been made in the earlier disciplinary proceedings.

The key issue was that the dismissal was within the range of reasonable responses.

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