Employment Law Cases
Disciplinary process and double jeopardy
Lyfar-Cissé v Western Sussex University Hospitals NHS Foundation Trust
It was not unfair to dismiss an employee after reopening a previously concluded disciplinary process that had led to a final written warning.
Ms Lyfar-Cissé worked as an Associate Director of Transformation at Brighton & Sussex University Hospital NHS Trust. Her role was to further racial equality in the trust, after repeated concerns had been raised about the treatment of BAME staff over several years. This position however was undermined when she told a manager of hers that he was ‘everything she despised in a white manager’. She had also bullied another colleague because of her sexuality and had breached that colleague’s confidentiality by interfering in the grievance process. In January 2017, after a disciplinary hearing, she received a final warning. Later that year, Western Sussex University Hospitals NHS Trust took over the management of the Brighton NHS Trust following a Care Quality Commission (CQC) investigation which concluded that bullying was rife at the trust. Ms Lyfar-Cissé came under new management and questions were asked about her suitability to provide leadership on equality issues. The disciplinary hearing was reopened and Ms Lyfar-Cissé was dismissed. A tribunal rejected her unfair dismissal complaint and she appealed.
The appeal was dismissed.
Ms Lyfar-Cissé argued that re-opening the outcome of the disciplinary proceedings was inequitable and against natural justice as the disciplinary findings against her were all dealt with and addressed; all the parties were bound by the decision to give her a final written warning, and therefore the same matters could not amount to any substantial reason to justify dismissal.
However, the EAT held that the tribunal had not made an error of law. While acknowledging that it is unusual to reopen disciplinary proceedings, the EAT held that the essential question in such a situation is whether the dismissal was fair in all the circumstances (ERA 1996, s 98(4)). There is case law authority to support the argument that the ‘double jeopardy’ rule does not apply to disciplinary proceedings.
The Chief Executive who took over management of the trust told Ms Lyfar-Cissé that she had ‘fatally undermined’ her role by having been found to have acted in the way she did. It was reasonable for the trust to reopen the complaint since the trust was under emergency management in part for its acceptance of poor behaviour. Given the CQC’s findings, Ms Lyfar-Cissé’s refusal to accept any accountability for her actions, and her responsibility for race equality, her dismissal on the grounds of some other substantial reason was fair.
There is, as the EAT pointed out, case law on this point, the most high-profile of which was the dismissal for gross misconduct of two social workers who had been given written warnings in relation to their involvement in care of a child who died (Christou v Haringey LBC). Following the criminal trial, their cases were reopened and they were dismissed for gross misconduct.
This case involved an unusual set of circumstances – where someone who was a race equality lead was found to have engaged in racist abuse. And it would not be sensible to draw any hard and fast rules from the decision.
However, it does illustrate that, as ever, the ultimate question for a tribunal in an unfair dismissal claim will always be the factual question of whether in all the circumstances the dismissal was fair or unfair. Here, new management scrutiny, a heightened risk position, the attitude of the employee and her credibility and ongoing suitability for her role, all made the reopening of the disciplinary proceedings a fair step to take in all the circumstances.