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United Kingdom

UK: Unfair dismissal – reopening disciplinary proceedings

Dr Lyfar-Cissé was Associate Director of Transformation in an NHS Trust, with responsibility for improving race equality, and was Chair of its BME Network.  The Trust disciplined her and gave a final written warning for incidents which included bullying and victimising an employee by seeking to interfere in the investigation of her sexual orientation discrimination complaint, and racial harassment and discrimination against another employee.

Meanwhile, a Care Quality Commission (CQC) inspection concluded that bullying was “rife” at the NHS Trust. It was put into special measures and another NHS Trust took over its management.  The new management felt there was a question as to whether Dr Lyfar-Cissé was a fit and proper person to provide leadership on equality issues. Following a further disciplinary hearing, at which Dr Lyfar-Cissé continued to deny wrongdoing, she was dismissed on grounds that her conduct had “fatally undermined” her ability to perform that leadership role.

The EAT said that re-opening a previously concluded disciplinary process was an unusual step which had to be justified, but the real question for the tribunal had been whether the dismissal had been unfair. The tribunal had concluded that Dr Lyfar-Cissé was dismissed because she could not continue in her role in the light of her conduct. This was a fair reason and the NHS Trust dismissing Dr Lyfar-Cissé had acted reasonably.

In deciding whether the dismissal was fair, the Tribunal took into account the findings of the CQC report, the claimant’s continuing unwillingness to accept any responsibility, and the new CEO’s conclusion that “it was not objectively credible or acceptable” for Dr Lyfar-Cissé to lead on the important issue of race equality in the light of her conduct.

The EAT also agreed with the tribunal that it did not matter whether the reason for dismissal was categorised as “conduct” or “some other substantial reason”. The key question was whether dismissal was fair in all the circumstances.

Key Action Points for Human Resources and In-house Counsel

This case is a helpful example of how, in some circumstances, it is possible to reopen disciplinary proceedings and fairly dismiss an employee for matters that they have already been given a final warning for. However, these cases are likely to be uncommon.

Lyfar-Cisse v Western Sussex University Hospitals NHS Foundation Trust [2022] EAT 193 (30 December 2022)