Although it is unusual for an employer to reopen a disciplinary process that has been concluded, the EAT has held in Lyfar-Cissé v Western Sussex University Hospitals NHS Foundation Trust and Brighton and Sussex University Hospitals NHS Trust and ors that the ultimate question was whether the dismissal was fair or unfair, in all the circumstances.
Basic facts
Dr Lyfar-Cissé, a clinical biochemist who had worked for the Brighton and Sussex Trust from 1985, became the associate director of Transformation in 2014. She also held a number of positions to improve race equality and was the chair of the trust’s Black and Minority Ethnic (BME) Network.
In April 2016, the trust was investigated by the Care Quality Commission which found a “fractured and damaged approach to equality and diversity” and a need for “cultural change”. It was placed in special measures and its management handed over to the Western Sussex Hospitals Trust.
Following a number of complaints, Dr Lyfar-Cissé was given a final written warning in late 2016 for bullying, victimisation, discrimination and harassment when it was still under the management of the Brighton and Sussex Hospitals Trust. One of the complainants then contacted the new management team to voice her concern that Dr Lyfar-Cissé had been allowed to continue in a leadership role.
Following a meeting with her at which she continued to deny that she was guilty of any misconduct, the new management team decided that Dr Lyfar-Cissé was not a “fit and proper person” to be a director under regulation 5 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 and terminated her employment.
Dr Lyfar-Cissé then brought tribunal claims, alleging that her dismissal was unfair and/or that it was automatically unfair because she had made protected disclosures, among other things.
Tribunal decision
Dismissing the claims, the tribunal held that the principal reason for her dismissal was the view taken by the managing director that it was not appropriate for someone who had been found responsible for acts of victimisation, harassment, and discrimination to be the lead person responsible for race equality. The claim for automatic unfair dismissal, therefore, failed.
With regard to the claim for ordinary unfair dismissal, the tribunal held that, as the decision makers genuinely believed that regulation 5 applied (as it would have done to anyone else in her position), it was irrelevant that there had been a difference of opinion between the new and old management as to the extent of the applicability of the regulations.
The reason for dismissal was, therefore, either conduct or “some other substantial reason”. As the process was fair and reasonable and as the decision to dismiss was not pre-determined, dismissal was within the range of reasonable responses.
Dr Lyfar-Cissé appealed, arguing that the trust could not reopen the disciplinary process once it had been completed, not least because it was contrary to its own disciplinary policy which stated that: ““No disciplinary action relating to conduct, including the issuing of a formal oral warning, may be undertaken outside of this disciplinary policy and procedure”.
EAT decision
The EAT held that although re-opening a previously concluded disciplinary process was “unusual” and should always require a “sufficient justification”, the ultimate question for the tribunal was whether the dismissal was fair or unfair, in all the circumstances. As the tribunal had asked itself that question, the EAT dismissed the appeal.
Comment
Appeal judges are often keen to avoid setting down rigid guidelines that must be followed in every instance. This decision demonstrates that principle in action. Whilst the EAT has decided the employer was entitled to reopen a disciplinary matter, it does not mean employers now have free rein to do the same. Each claim for unfair dismissal is to be assessed on a case-by-case basis. There were particular facts relevant to this case that would not necessarily be present in other cases. Employers should be cautious about reopening disciplinary cases, unless they have a strong justification for doing so.