Employment: Reopening discipline proceedings – fair do?

In the recent case of Lyfar-Cissé v Western Sussex University Hospitals NHS Foundation Trust [2022] EAT 193, the Employment Appeal Tribunal held that, while reopening concluded disciplinary proceedings may be “unusual”, it is not necessarily unfair for employers to decide to impose a different outcome, including dismissal, on that basis.

Facts

From 1985 until her dismissal in September 2017, the claimant, Dr Lyfar-Cissé was employed by the second respondent, Brighton & Sussex University Hospitals NHS Trust. Since 2005, the claimant had made a number of protected disclosures, which resulted in her raising five employment tribunal claims (including race discrimination, victimisation and harassment) against the second respondent.

In 2014, the claimant was appointed to a position in which she was tasked with improving race equality within the second respondent. Two years later, a total of 19 allegations of bullying, victimisation, racial harassment and discrimination were raised against her. One accusation was that the claimant had told a colleague he was “everything [she] despised in a white manager”. The claimant denied any wrongdoing. Disciplinary proceedings were instituted and concluded with a 12-month final written warning for the claimant.

While these proceedings were ongoing, the second respondent was being investigated by the Care Quality Commission (“CQC”). In August 2017, the CQC delivered a report in which it referred to “a culture of fear” within the second respondent, remarking that it had a “fractured and damaged approach to equality and diversity”. As a result, the executive team of the first respondent, Western Sussex University Hospitals NHS Foundation Trust, was appointed to manage the second respondent.

Subsequently, the first respondent decided to reopen the allegations against the claimant, worrying that there were “fit and proper person issues” which had not been adequately resolved. Ultimately, it decided to dismiss the claimant with three months’ notice.

The claimant raised a claim for unfair dismissal and automatic unfair dismissal. She alleged that the principal reason for her dismissal was her protected disclosures, and that she had been victimised under s 27 of the Equality Act 2010. The ET dismissed the claims and the claimant appealed.

EAT decision

The EAT acknowledged that it will be rare for circumstances to justify the reopening of a disciplinary process and that, in considering whether to do so, employers “will always require a sufficient justification”. However, the particular facts were sufficiently unusual to warrant this step. Relevant considerations included the CQC report, the claimant’s failure to take any responsibility for her actions, her role in relation to race equality and the first respondent’s genuine concerns that, in light of the grievances, she was not the appropriate person for the role.

Accordingly, the EAT found that the ET had correctly applied the crucial question posed by s 98(4) of the Employment Rights Act (whether, in all the circumstances, the dismissal was fair) when deciding that the employer had acted reasonably. It also agreed that the reason for dismissal could be categorised as a conduct issue or “some other substantial reason” but, in any case, had nothing to do with any protected disclosures made by the claimant.

Comment

The case at hand confirms and builds on the ET’s judgment 10 years ago in Christou v London Borough of Haringey [2013] EWCA Civ 178. While the principle of res judicata has full force in the judicial context of the courts, it does not typically apply to internal employee disciplinary proceedings. The employment relationship is far removed from the adjudicatory environment: it is the employer who determines the outcome of proceedings (as opposed to an independent arbiter) and, in so doing, the employer is not acting, nor are they intending to act, like a judge.

However, while this means that employers may instigate second disciplinary hearings on the same facts and may reasonably decide to take a different view, they must have sufficient justification for doing so.

Interestingly, in both Lyfar-Cissé and Christou, the fact that new management had been appointed and was “entitled to take a different view about the gravity of the conduct” was considered relevant.

Lyfar-Cissé is a reminder that there is no “one-size-fits-all” approach to the assessment of fairness. While the circumstances were sufficiently unusual to justify reintervention, this will always be a highly fact-specific issue. Context is key and, in another recent case, the EAT considered that the employer’s reopening of a disciplinary matter was motivated by “a desire to appease regulators by showing that it was cleaning up its act” and, accordingly, ordered the employer to reinstate the employee.

In short, this case does not give free rein for employers to increase the severity of a disciplinary outcome, and employers must proceed with caution when considering whether to reopen disciplinary proceedings and/or to reach a different view or outcome.