Can an employer re-open previously concluded disciplinary proceedings?
Yes, in some cases, says the Employment Appeal Tribunal in Lyfar-Cissé v Western Sussex University Hospitals NHS Foundation Trust and others  EAT 193
The Employment Appeal Tribunal (EAT) held that the employer in this case was entitled to re-open earlier disciplinary proceedings against an employee for the same conduct and that the employee’s subsequent dismissal as a result was not unfair.
Ms Lyfar-Cissé (the claimant) was the Associate Director of Transformation at Western Sussex University Hospitals NHS Foundation Trust (R2). Her role involved aiming to improve racial equality within R2 and she was also Chair of its BME Network. She went through a disciplinary process which resulted in a final written warning regarding various incidents which included bullying and victimising a colleague by seeking to interfere in the investigation of her sexual orientation discrimination complaint, as well as racial harassment and discrimination against another employee.
A Care Quality Commission (CQC) investigation concluded that bullying was ‘rife’ in R2 and so another NHS Trust (R1) took over its management. R1 felt there were questions as to whether the Claimant was a fit and proper person to provide leadership on equality issues under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (SI 2014/2936) due to the previous disciplinary action which resulted in a final written warning. R2 conducted a further disciplinary hearing against the claimant in relation to the same conduct she was originally disciplined for, at which she continued to deny wrongdoing.
Following this hearing, the claimant was dismissed from R2 on grounds that her conduct had ‘fatally undermined’ her ability to perform that leadership role.
After an employment tribunal rejected the claimant’s unfair dismissal claim, she appealed to the EAT. Her key argument was that R2 should not have reopened disciplinary proceedings as it was not entitled to do so. The EAT disagreed and applied Christou v London Borough of Haringey in which the Court had held that any earlier disciplinary outcome was just part of the circumstances to be considered when determining whether dismissal was fair.
Whilst the EAT noted that reopening disciplinary proceedings is unusual, it decided the tribunal had made no error of law and had given clear reasons for its decision on the fairness of the dismissal. Reasons included the findings of the CQC report, the claimant continuing to take no responsibility and R2’s conclusion that "it was not objectively credible or acceptable" for the claimant to continue in her role, which required her to lead on race equality issues, after her previous conduct.
The EAT also upheld the tribunal’s view that the reason for dismissal could be categorised as either ‘conduct’ or ‘some other substantial reason’, however it was always essential to assess if the dismissal was within the range of reasonable responses, which in this case the EAT concluded it was.
This is an interesting decision but employers should exercise caution in such situations. The EAT made clear that reopening disciplinary proceedings is still unusual and much depended on the particular facts and circumstances of this case, including the claimant’s role and the findings of the CQC report.
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