A recent EAT judgment serves as a reminder that it can be fair for an employer to reopen a disciplinary process and increase the sanction to dismissal where the circumstances justify this. Employers should act with caution as such circumstances will be rare, but could include where regulator intervention gives rise to a need to revisit whether the employee remains fit for a key role.
In Lyfar-Cissé v Western Sussex University Hospitals NHS Foundation Trust the claimant held a key role providing leadership on race equality issues. She was given a final written warning following a disciplinary investigation into allegations that she had harassed, bullied and discriminated against colleagues due to race and sexual orientation. Her employer NHS Trust was then put in special measures following a Care Quality Commission report that leadership was inadequate (including on racial equality grounds) and that there was a culture of harassment and bullying. New management considered that there was an issue as to whether the claimant was a ‘fit and proper’ person to continue in her role. The disciplinary process was reopened and she was dismissed, in part because of her continued denial that misconduct had occurred and that any change in behaviour was required.
Previous Court of Appeal authority had established that there is no absolute rule against double jeopardy in relation to internal disciplinary proceedings. The unusual facts here justified re-opening the disciplinary process and this did not render the dismissal unfair.
Permission to appeal the judgment has recently been refused by the Court of Appeal.