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Reopening Disciplinary Proceedings After a Final Warning?

Can a previously concluded disciplinary process be reopened, and an employee dismissed, where a final written warning has already been served?

In Lyfar-Cissé v Western Sussex University Hospitals NHS Foundation Trust, LC was the Associate Director of Transformation in an NHS Trust, with responsibility for improving race equality. After incidents of bullying and victimisation of one employee and racial harassment and discrimination of another, LC was disciplined in connection with incidents of discrimination, including bullying, victimisation and harassment, and given a final written warning.

A Care Quality Commission (CQC) inspection into that Trust concluded that bullying was rife, and another NHS Trust took over its management. The Managing Director of this new Trust felt that LC may not be a fit and proper person to provide leadership on equality issues, given the incidents for which she had previously been disciplined. A further disciplinary hearing was held with the CEO of the new Trust, at which LC denied any wrongdoing. She was dismissed on the grounds that her conduct had fatally undermined her ability to perform her role. LC brought a claim for unfair dismissal.

In the first instance, the Employment Tribunal rejected LC’s unfair dismissal claim, on the grounds that the reason for dismissal fell within the “some other substantial reason” category, that the process adopted by the new Trust was fair and reasonable, and that, given the findings of the CQC report and LC’s continuing unwillingness to accept any responsibility, dismissal was within the range of reasonable responses; the dismissal was therefore fair. LC appealed to the Employment Appeal Tribunal (EAT), arguing that the new Trust should not have reopened concluded disciplinary proceedings.

The EAT applied the case of Christou v London Borough of Haringey. In that case, the Court of Appeal confirmed that the legal doctrine of Res Judicata, which prevents parties from re-litigating claims or issues which have already been litigated, does not apply to disciplinary proceedings. The existence of concluded disciplinary proceedings therefore did not preclude the new Trust from fairly dismissing LC for the matters already determined in a previous disciplinary process.

However, in considering whether the dismissal was fair, the EAT did have to take the earlier disciplinary outcome into account. The EAT conceded that it was unusual for disciplinary proceedings to be reopened but found that the Employment Tribunal had made no error of law and had provided clear reasoning for its finding that the dismissal was fair in the circumstances. The EAT therefore upheld the Tribunal’s decision.

This case confirms that a concluded disciplinary process does not automatically preclude an employer from subsequently fairly dismissing an employee for matters already determined in that disciplinary process. However, it should be noted that the facts of this case are rather unusual. Once a disciplinary process has ended, there would need to be exceptional circumstances to justify re-opening or overturning the decision that was made. We would always recommend getting legal advice before taking such steps. If employment is ongoing, there is a risk that such action would undermine the implied contractual term of trust and confidence between the parties, allowing the employee to resign and claim constructive dismissal.  If the employment is terminated there would be a risk of an unfair dismissal claim.

For example, in this case, new management took over and needed to investigate concerns and make improvements and could rely on a third-party report specifically highlighting concerns regarding the employee’s conduct and her ongoing suitability for her role in a senior position in a public body. In addition, the employee continued to refuse to accept any responsibility for her actions, which again supported a dismissal for “some other substantial reason”.  Alternatively, it may be justifiable to re-open or review a disciplinary decision in the event that new relevant information or evidence comes to light.

If you would like advice on terminating an employee’s employment, or you believe that you may have been unfairly dismissed yourself, or you require any other employment law advice, please get in touch at [email protected]