400: Can a historic disciplinary process be reopened?

The recent case of Lyfar-Cissé v Western Sussex University Hospitals NHS Foundation Trust provides a timely reminder that employers are not barred from reopening internal disciplinary proceedings, but doing so must be fair in all the circumstances. In this case, the Employment Appeal Tribunal (EAT) held that it was fair to dismiss an employee after reopening a previously concluded disciplinary process that had led to a final written warning.

Dr Lyfar-Cissé worked at Brighton and Sussex University Hospital NHS Trust from 1985 until her dismissal in 2017. During this time, she was responsible for improving race equality and was also Chair of the Trust’s BME Network, which aimed to promote good race relations and eliminate racial discrimination for employees and service users. In 2016, three disciplinary allegations were upheld against Dr Lyfar-Cissé, and she was issued with a final written warning. These allegations concerned incidents of racist bullying and victimisation of an employee who had submitted a sexual orientation complaint.

At around the same time, Western Sussex University Hospitals NHS Trust took over management of the Brighton NHS Trust following a Care Quality Commission (CQC) investigation that had concluded that bullying and discrimination were rife. The new management questioned Dr Lyfar-Cissé’s regulatory status as a fit and proper person, as well as her suitability to provide leadership on equality issues. Following a further disciplinary hearing held by the new CEO, she was dismissed on three months’ notice on the grounds that her conduct had fatally undermined her ability to perform her leadership role.

The Employment Tribunal rejected Dr Lyfar-Cissé’s claim of unfair dismissal. She appealed to the EAT, arguing that re-opening the disciplinary proceedings was unfair and that the Trust was bound by its initial decision to give her a final written warning. However, the EAT held that the Tribunal had not made an error of law. While acknowledging that it is unusual for an employer to reopen disciplinary proceedings, the EAT held that the essential consideration in this situation is whether the dismissal was fair in all the circumstances. New management had been imposed on the Trust in part because of a culture of acceptance of poor behaviour. Given the CQC’s findings, Dr Lyfar-Cissé’s refusal to accept responsibility for her actions, and her role in promoting race equality, the Tribunal was entitled to conclude that her dismissal was fair and within the range of reasonable responses.

This judgment is consistent with the 2013 case of Christou v London Borough of Haringey, in which two social workers who had previously been given written warnings were dismissed for gross misconduct after disciplinary proceedings were reopened. However, it is worth noting that the facts in both cases are unusual; the CQC’s report of Dr Lyfar-Cissé’s attitude and credibility, for instance, and the potential regulatory issues were relevant factors that made reopening the disciplinary proceedings fair. Therefore, this case provides welcome confirmation that employers can reopen internal disciplinary proceedings and increase the previous sanction if it is fair in light of all the circumstances.

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