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LYFAR-CISSé v BRIGHTON & SUSSEX UNIVERSITY HOSPITALS NHS TRUST and ors [2022] EAT 193
DR VIVIENNE LYFAR-CISSé (Appellant) v 1) WESTERN SUSSEX UNIVERSITY HOSPITALS NHS FOUNDATION TRUST 2) BRIGHTON & SUSSEX UNIVERSITY HOSPITALS NHS TRUST 3) MS MARIANNE GRIFFITHS 4) MS EVELYN BARKER (Respondents) [2022] EAT 193
This recently reported EAT decision raises interesting issues as to the extent an employer can reopen and revisit a concluded disciplinary?process so as to arrive at a different outcome as to sanction than that first imposed. ?
In this case, after the disciplinary proceedings had been disposed of by way of a written warning, the employer then in effect re-opened the case and dismissed the employee from her post because of the same alleged misconduct, contrary to the disciplinary policy which provided :
“No disciplinary action relating to conduct including the issuing of a formal oral warning may be undertaken outside of this disciplinary policy and procedure.”
One would imagine that?as a matter of natural justice, as well a contract law, the ?employee had a sustainable claim both for unfair dismissal and for breach of contract and it is only by examining the particular facts of this case that one can appreciate the conclusions of the EAT.
The change in management is the key to understanding to this case.
The disciplinary process was concluded in ?November 2016 (an appeal being subsequently rejected on 04 January 2017)
On 01 April 2017 following intervention and report of the CQC in August 2016 and ‘special measures’ being imposed on the employer (an NHS Trust) a new management board (comprising the management of a second NHS Trust) assumed the same roles in the employer Trust, including the Chairman, the CEO, the deputy CEO and Chief Medical Officer and the Manging Director.
The new?management were apprised of?the previous disciplinary process and the CQC report
Their attention was drawn to the provisions of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 and in particular Reg 5 ‘fit and proper person’ criteria for persons ‘performing the functions of, or functions equivalent or similar to the functions of… a director’, the employee being the ‘Associate Director of Transformation’.
The new management perceived there to be a potential tension between their obligations under the 2014 Regulations and the employee’s continued employment after adverse findings as to her conduct made in the now concluded disciplinary proceedings
The employer proposed a meeting to discuss whether it was “tenable for you to continue in your current role with responsibility for providing leadership on important equality issues” at which meeting the employee continued to deny the conduct alleged in the original disciplinary process and which had been the subject of adverse findings which led to the?final written warning.
Following the report summarising that meeting the employee was given the opportunity at a subsequent hearing to question the author of the report, the outcome of which hearing was the employer concluding
It is important to note that the?Regulations on which the employer relied were existing and applied to this employer at the time of the original disciplinary process and to the extent that they failed then to have proper or adequate regard to them, that was a failing on their part which they were now seeking to make good.
It should however be noted that the Employment Tribunal had regard to the employee’s continued ?unwillingness to accept any responsibility for the conduct in respect of which findings had been made at the original disciplinary process, a position which she adopted throughout the ‘new’ process
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As the Appeal Tribunal itself observes “This case raises the difficult question of when it can be fair for an employer to re-open a concluded disciplinary process.”
In Christou v Haringey LBC [2013] EWCA Civ 178, [2013] ICR 1007, to which the Appeal Tribunal had regard, the ET rejected the claim and its decision was upheld by the Appeal Tribunal. Dismissing their further appeals, the Court of Appeal ruled that doctrines such as res judicata or abuse of process do not apply to employers’ disciplinary procedures so as to bar a second disciplinary process. (It is not clear to the author why res judicata or abuse of process would have any relevance in any event to an internal disciplinary process, which propositions appear to be confined to judicial process - see?Lord Sumption in Virgin Atlantic Airways Limited (Respondent) v Zodiac Seats UK Limited (formerly known as Contour Aerospace Limited) (Appellant) ?[2013] UKSC 46)
Christou does not appear to address the contractual obligations of the employer on which the employee was expressly relying in the present case nor does it explore whether a ‘new’ process relying on the same misconduct could apply criteria (in this case the 2014 Regulations) to which it should, but failed, to have regard in the original disciplinary process or whether it was confined to new evidence which was not available in the original process.
Whilst acknowledging (para 40) that “re-opening a previously concluded disciplinary process is an unusual step which will always require a sufficient justification”?the EAT concluded that the ultimate question for an ET in an unfair dismissal claim will always be the factual question posed by section 98(4) of the ERA, of whether in all the circumstances the dismissal was fair or unfair. ?
The EAT concluded that the ET was right to find that the reason for dismissal could be characterised as either
(i)????conduct (the subject of the original?disciplinary process) or
(ii)???Some Other Substantial Reason (the conflict subsequently identified, with the 2014 Regulations),
and that the essential question was that posed by section 98(4) of the ERA 1996 of whether the dismissal was fair in all the circumstances.
So far as SOSR is concerned there?was a clear?conflict which had to be resolved between the employer’s continuing statutory obligations under the 2014 Regulations and the employee's continued employment notwithstanding findings of fact as to the employee’s conduct, which importantly she continued to deny.
SOSR is more easily understood in this case than the EAT’s conclusion that the employer could rely on conduct. One would reasonably assume that, the misconduct having been addressed by a written warning following a formal disciplinary process, all parties were entitled to conclude, absent any repetition of such conduct, that that was the end of the matter.
It remains the case that a commercial private employer should be slow to contemplate re-opening a concluded disciplinary process relying on this EAT judgment. It perhaps reflects the public, statutory nature of the undertaking involved to which express reference is made by the Court of Appeal in Christou which observed “the justification for reopening the case lay in the fact that the allegations of misconduct were very serious because they involved a risk to a member of the public, and that new management were entitled to take a different view about the gravity of the conduct”.
Even?with that qualification, the employer in this case was fortunate that it succeeded in revisiting a?disciplinary process to substitute a sanction of?dismissal for that of written warning by reference to criteria (the 2014 Regulations) to which if should, but apparently failed to, have regard when imposing the original sanction.