Is it fair to reopen a previously concluded disciplinary process? It might happen if there’s a change in management but is that a sufficient justification? The EAT has been looking at this in a case called Lyfar-Cissé and, on the facts, they decided it was not unfair for an employer to reopen a disciplinary process that had ended with a final written warning and to subsequently dismiss the individual.
The facts briefly. The claimant was Dr Vivienne Lyfar-Cissé, pictured here in the Mail Online which covered the story when she was dismissed. She had various responsibilities for improving race equality but clashed with a number of individuals and, in November 2016, she was given a final written warning for bullying and allegedly telling a colleague he was 'everything she despised in a white manager'. Around that time, an inspection of the Trust was carried out by the regulator, the Care Quality Commission, which found there was a ‘culture of fear’ in the organisation and it was rated as “inadequate” and placed in Special Measures. Shortly after that a new managing director was appointed and she saw the outcome letters from the disciplinary process and raised concern that the findings called into question ‘her ability to have a leadership role on equality issues’ and whether she was a ‘fit and proper person’ to conduct the role. She held a further disciplinary hearing and found that the claimant’s ability to perform her leadership role had been ‘fatally undermined’ by her conduct and she was dismissed with 3 months’ notice. The claimant went on to bring various claims at the employment tribunal, including unfair dismissal, arguing that the disciplinary proceedings should not have been reopened. The case reached the EAT which has now ruled that the decision to reopen the case was not unfair in the circumstances, and was justified.
So that is an interesting ruling which may be helpful to employers. But how much reliance can we put on it? Earlier, I discussed that point with Linda Jones who joined me by video-link from Birmingham.
Linda Jones: “I think this is a really interesting case, actually, because it brings into play the principle of double jeopardy which most people are more familiar with in a criminal context. The general principle, and it's a very long standing on principle of law, is that you can't be tried twice for the same offence, except in very limited circumstances. So, this case looks at how does that play out in the disciplinary context and I think most people would agree that it's not right that employees should be punished twice for the same offence because people have to be able to know that once they've gone through a disciplinary hearing, they've been given a warning, that's the end of it, they can move on, and it would be unfair to them to have it hanging over their head and the thought that it could all be reopened and started all over again. So, that's the general principle that's applied and one of the interesting things about this case is that the employer did go back and reopen a disciplinary decision, and they decided to dismiss the employee on the second occasion of looking at it and the Employment Appeal Tribunal said that that was fair. On the surface of it, it looks as if that is actually giving employers the ability to go back and have a second bite of the ‘disciplinary cherry’ as it was described in the case but, actually, I think that's slightly misleading. I think the key message, really, from this case is that in the vast majority of circumstances it will be unfair to go back and reopen a disciplinary decision. But in very limited circumstances, it might sometimes possibly be fair.”
Joe Glavina: “You refer to very limited circumstances and I’m wondering what they might be. So, would a change in management, as in this case, qualify, where the new manager thinks the original sanction was too lenient so wants to reopen the disciplinary?
Linda Jones: “I don't think it's quite as simple as that. There are always going to be circumstances where somebody comes in and thinks, oh, my predecessor was too soft, I think they're going to have to show more than that. In this particular case, the NHS Trust which was the employer had undergone some criticism from the regulator, there was a lot of backlash from staff about the individual still being in the workplace and causing bad feeling and there were some big, significant, cultural problems for the chief executive of this NHS Trust to have to deal with and she felt that the continued presence of the individual employee in the workplace was a bar to her being able to achieve the changes that she wanted to bring about, cultural changes, and the tribunal accepted that, and the Employment Appeal Tribunal accepted that as well. So, I think just all of those different factors coming together illustrates that there are going to have to be circumstances which are different at the second time that the situation is looked at, that are significantly different from the circumstances that applied when the situation was looked at in the first place.”
Joe Glavina: “So it sounds, from what you’re saying, that reopening a disciplinary is a risky business so best take legal advice if you’re thinking of going down that route? Because the stakes are very high?”
Linda Jones: “Yes, I totally agree that the stakes are very high and I definitely think that is a situation where you would want to take legal advice. It's going to be seen as a very exceptional very limited case, but it's useful because it does give the employer, in certain circumstances, the ability to go back and reopen a disciplinary decision and do something differently, but that will have to be done very, very carefully and with the benefit of legal advice, yes.”
That case is Lyfar-Cissé v Western Sussex University Hospitals NHS Foundation Trust
v Western Sussex University Hospitals NHS Foundation Trust and is a decision of the Employment Appeal Tribunal. We’ve put a link to it in the transcript of this programme.
- Link to case report: Lyfar-Cissé v Western Sussex University Hospitals NHS Foundation Trust