Case law updates

Disciplining twice for the same offence not automatically unfair

Whilst an employee should not generally be disciplined twice for the same offence, a recent case shows that in exceptional circumstances an employer can reopen disciplinary proceedings that had been previously concluded.

In the case considered by the Employment Appeal Tribunal in Dr Vivienne Lyfar-Cissé v Western Sussex University Hospitals NHS Foundation Trust and others the claimant, a clinical biochemist and chair of the Trust’s BME network, was subject to disciplinary proceedings that had resulted in a final written warning following complaints against her. The complaints included her refusing to take part in procedures in relation to investigations into reports of bullying and discriminatory conduct towards another employee. At around the same time as these proceedings were being conducted, a Care Quality Commission (CQC) inspection had found numerous problems with staff relations, and as a result the trust had been put into special measures. As part of this process, a new management team had taken responsibility for the running of the Trust, and they had concerns as to whether L-C was a fit and proper person to continue to provide leadership on equality issues.

They decided a further disciplinary hearing would be held, at which she was dismissed on the basis that her conduct had “fatally undermined” her ability to perform the leadership role. 

Responding to the claim that the dismissal was unfair as she had been disciplined twice for the same issue the EAT held that while it was unusual to reopen disciplinary proceedings it would not necessarily mean the dismissal was unfair. The statutory test for unfair dismissal was whether after considering all the circumstances the dismissal was fair or unfair.

The fact that there had been a previous disciplinary hearing was just one of the factors to be taken into account. It was also noted that the Court of Appeal had previously ruled in the case of Christou v London Borough of Haringey (2013) that there was no legal principle that would bar a second disciplinary process. 

The findings of the CQC report and the conclusion of the new management team that “it was not objectively credible or acceptable” for the claimant to lead on the important issue of race equality in the light of her conduct were sufficient to establish there were fair grounds for dismissal and within the range of reasonable responses. 

Commentators have noted that the case could just as easily have fallen under the heading of ‘some other substantial reason’, as the reason for dismissal was the incompatibility of the employee to continue in the role given the findings that had been made in the earlier disciplinary proceedings.