Not unfair to dismiss an employee after reopening a previously concluded disciplinary process
The Employment Appeal Tribunal (EAT) has upheld a tribunal's decision in Lyfar-Cissé v Western Sussex University Hospitals NHS Foundation Trust that it was not unfair to dismiss an employee after reopening a previously concluded disciplinary process that had led to a final written warning.
The claimant was Associate Director of Transformation in an NHS Trust (R2) with responsibility for improving race equality and was Chair of its BME Network. She was disciplined and given a final written warning for incidents including bullying and victimising an employee by seeking to interfere in the investigation of the employee's sexual orientation discrimination complaint, and racial harassment and discrimination against another employee.
In the meantime a Care Quality Commission (CQC) inspection had concluded that bullying was "rife" at the Trust. It was put into special measures and another NHS Trust (R1) took over its management. R1's Managing Director thought that there was an issue under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 as to whether the claimant was a fit and proper person to provide leadership on equality issues. A further disciplinary hearing took place held by R2's CEO and the claimant was dismissed on the grounds that her conduct had "fatally undermined" her ability to perform that leadership role.
When a tribunal rejected her claim she appealed to the EAT arguing that R2 should not have reopened the disciplinary proceedings, and that the earlier disciplinary outcome was just part of the circumstances to be considered when determining whether dismissal was fair. Although the EAT noted that it is unusual to reopen disciplinary proceedings, the tribunal had not made an error of law and had given clear reasons for its decision including the findings of the CQC report, the claimant's continuing unwillingness to accept responsibility and the new CEO's conclusion that " it was not objectively credible or acceptable" for the claimant to lead on the important issue of race equality in light of her conduct.
Take note: This case has unusual facts, and generally it won't be fair to reopen disciplinary proceedings. However, here clear reasons had been given as to why the proceedings were reopened, namely the findings of the CQC report, and the new CEO's decision that the claimant could not be a credible leader in light of her conduct when it came to matters of equality and diversity.