The facts

Dr Jean Vivienne Lyfar-Cissé was employed by Brighton & Sussex University Hospitals NHS Trust  (“the Trust”) for over thirty years.  At the time of her dismissal, she was employed as an Associate Director of Transformation and Chair of the BME Network.  As Chair of the BME Network, her role was the promotion of good race relations and the elimination of racial discrimination for employees and health service users.   During her employment, she made several whistleblowing disclosures, in relation to which she brought whistleblowing claims in the employment tribunal. 

In 2016, Dr Lyfar-Cissé was the subject of disciplinary proceedings relating to 19 allegations that had been made against her, including accusations of bullying, victimisation, racial harassment and discrimination.  She was issued with a twelve month final written warning. 

An inspection by Care Quality Commission (“CQC”) conducted that year resulted in a report finding that the Trust was “inadequate”, and it was rated as inadequate in the area of leadership. The CQC’s report referred to bullying, harassment and discrimination being “rife in the organisation” and found that BME staff felt there was a “culture of fear”. It also referred to a “fractured and damaged approach to equality and diversity” and to the need for “cultural change”.  The Trust was placed in special measures, and the executive team of another trust was brought in to take over the running of the Trust and to support it. 

One of the individuals who had raised allegations against Dr Lyfar-Cissé sent emails to the Trust’s HR Director and interim CEO expressing shock that Dr Lyfar-Cissé still held the role of race equality lead.  With the new leadership team in place, the disciplinary against Dr Lyfar-Cissé was reopened.  The decision to do this was made in light of the findings of the CQC’s report, Dr Lyfar-Cissé’s continued unwillingness to accept any responsibility for her actions and the new CEO’s view that it was not appropriate for Dr Lyfar-Cissé to lead on race equality issues given these actions. 

After an investigation and disciplinary process, Dr Lyfar-Cissé was dismissed because the Trust considered her ability to perform her leadership role was “fatally undermined by having been found to act in the way that she has”.

Dr Lyfar-Cissé brought claims in the employment tribunal for unfair dismissal, automatic unfair dismissal by reason of victimisation, and detriments for making a protected disclosure. She alleged that her dismissal was unfair on the grounds that the principal reason for it was the protected disclosures she had previously made, and that she had been victimised by virtue of making such disclosures.

The employment tribunal dismissed her claim, and she appealed to the EAT arguing (amongst other things) that the Trust should not have reopened the disciplinary proceedings.  Her EAT appeal was unsuccessful. 

Of particular interest to employers is the fact that the completed disciplinary process was re-opened and a harsher sanction was imposed, but this did not mean that the dismissal was unfair.  As the EAT noted, it is unusual to reopen disciplinary proceedings. Usually, a dismissal under these circumstances would be unfair.  However, the particular and unusual circumstances of this case – including the CQC report, Dr Lyfar-Cissé’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 – meant that it was within the range of reasonable responses for the Trust to decide to dismiss.  The earlier disciplinary decision was just one of the factors to be taken into account.

What does this mean for employers?

This case shows that there may be some circumstances under which it will not be unfair to reopen a disciplinary process that has concluded.  This is not a change in law.  The crucial question in an unfair dismissal claim will always be whether, in all the circumstances, the dismissal was fair or unfair based on the facts of the case.  The circumstances of this case were unusual, and slightly different facts might have resulted in a finding of unfair dismissal.  Employers should act with caution when considering whether to re-open a disciplinary case that has been concluded, but in the right circumstances this may be appropriate.

Lyfar-Cissé v Western Sussex University Hospitals NHS Foundation Trust and others