Sun 29 Jan 2023

Dismissal arising from reconsideration of closed disciplinary proceedings can be fair

In an unusual case issues previously addressed under a disciplinary proceedings were reconsidered  and a sanction of dismissal applied.


Re-considering issues already addressed under a completed disciplinary procedure and then dismissing seems to be a sure-fire route to an unfair dismissal.  However, the case of Lyfar-Cisse v Western Sussex Hospital NHS Foundation Trust & Others shows the importance of context when considering fairness. 

The claimant's role included responsibility for improving race equality.  However, following allegations of bullying, victimisation, racial and sexual orientation harassment and discrimination being made against the claimant she was disciplined and given a final warning.  Earlier in the same year a Care Quality Commission ("CQC") inspection found bullying was rife at the Trust, and a new executive team from another NHS Trust took over its management.  The new Managing Director was concerned that the nature of the allegations that had been made against the claimant meant she was no longer a fit and proper person to lead on equality issues.  A further meeting (not strictly speaking one that was stated to be under the disciplinary policy) was convened, the matter reconsidered by the new CEO and the claimant dismissed.  She had continued to deny any wrongdoing during this process.

The claimant's subsequent unfair dismissal claim was unsuccessful before an employment tribunal.  It held that the process followed by the new Trust was fair, the dismissal being for "some other substantial reason".  Both the findings of the CQC report and the claimant's refusal to accept any responsibility for wrong doing were significant in finding the dismissal was fair and within the band of reasonable responses open to an employer to take.   The claimant appealed to the Employment Appeal Tribunal ("EAT") arguing the concluded disciplinary proceedings should not have been reopened. 

The EAT upheld the employment tribunal judgment.  It held that "It is clear that re-opening a previously concluded disciplinary process is an unusual step which will always require a sufficient justification. However, the ultimate question for an ET in an unfair dismissal claim will always be the factual question…of whether in all the circumstances the dismissal was fair or unfair."   The Court of Appeal had previously confirmed that the legal doctrine of Res Judicata, that prevents claims or issues that have been heard from being re-litigated, does not apply to disciplinary proceedings.  The employment tribunal had made no error in finding the dismissal fair in the circumstances.

This case highlights that, in appropriate circumstances, employers may re-consider an earlier disciplinary decision.  However, the EAT did concede that doing so was unusual, and it was down to the particular circumstances of this case that the action of the employer was reasonable.  It should also be borne in mind that, even if dismissal was not the end result of a reconsideration of an earlier disciplinary finding, employers still run the risk of an employee resigning and claiming constructive dismissal if proceedings are re-opened without proper justification for doing so.  It should be assumed that such a step could only be taken in exceptional circumstances and taking legal advice before doing so would be recommended. 

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