We’ve all watched enough crime thrillers to recognise the double jeopardy rule: you can’t be tried twice for the same crime. This is not so the case with disciplinary processes in the workplace. Provided that any subsequent decision to dismiss is fair in all circumstances, a disciplinary process may be re-opened and may lead to a fair dismissal. The circumstances are limited, but a recent employment appeal tribunal (EAT) case illustrates how this may be particularly relevant in the health and social care sector. Organisations reeling from a regulator visit, anxious to improve and act on advisory measures, could provide such circumstances.

This was the case in Dr Vivienne Lyfar-Cissé v Western Sussex University Hospitals NHS Foundation Trust and others: [2022]. The judgment provides some useful learning points and clarity.

Ms Lyfar-Cissé was the associate director of transformation at the Trust. A key component of this role was to improve race equality for employees and service users and to chair the black and minority ethnic network. Following multiple complaints including her refusing to participate in an investigation, she was invited to attend a disciplinary meeting in 2016. Following the meeting in November 2016, she received a final written warning for incidents of bullying and victimisation and failure to comply with reasonable instructions to participate in an investigation. Whilst this was going on, her employer, the NHS trust had undergone a CQC inspection which had drawn some damming conclusions. The CQC outlined its concerns about the Trust’s ability to provide safe, effective, responsive and well-led care and found that bullying was rife. It was put into special measures and another Trust took over its management. Details of Ms Lyfar-Cissé’s disciplinary and appeal letters were sent to the new managing director. This triggered a concern that she was not 'a fit and proper person' for the role she held, as required under Regulation 5 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. Following a disciplinary hearing where Ms Lyfar-Cissé continued to deny the allegations made against her in the 2016 disciplinary, she was dismissed. She was informed that her role fell within Regulation 5 and that her ability to perform it was fatally undermined by the outcome of the 2016 disciplinary matter. She bought an unfair dismissal claim at the tribunal. It was rejected and she appealed to the EAT on various grounds. The key one for us is her complaint that the 2016 disciplinary matter should not have been re-opened and that this prompted her dismissal. 

EAT decision

Following an earlier case in the Court of Appeal (Christou v London Borough of Harringey), the EAT noted the following:

• The rule that stops parties from re-trying a matter that had already been tried (res judicata) does not apply in disciplinary hearings.
• The key question remains; is the dismissal fair in all the circumstances and the re-opening of disciplinary matters is part of those circumstances?

Learning points

• Some circumstances may mean that reopening a disciplinary matter is fair. These circumstances are limited – this is not an excuse for a 'second bite of the cherry' if you didn’t get the outcome you wanted at a historic disciplinary hearing.
• Addressing issues following a regulator’s review (as was the case here) is clearly seen as one of those circumstances. That said, again it must be reasonable. The CQC review clearly highlighted issues of bullying – reopening a case of bullying against a senior manager where they have refused to acknowledge wrongdoing was reasonable. Reopening a matter which is of no relevance to a regulator’s report but uses that as a defence is unlikely to be reasonable and could render the dismissal unfair.
•  This should not be confused with case law regards warnings. It is accepted from various cases that spent warnings cannot be resurrected once they have fallen away. It is important here to note that Ms Lyfar-Cissé’s final written warning was not extended nor referred to. Rather it was the disciplinary process itself and the pertinence of allegations made against her.
• The key here is Ms Lyfar-Cissé’s refusal to accept the allegations made against her and so, apparently show any inclination to learn or change her behaviours. The Trust may have struggled to show their actions were reasonable had she acknowledged her misconduct and demonstrated a willingness to learn and change. 
• Ensure consistency; whilst Ms Lyfar-Cissé’s allegations that she was being victimised because of her history of protected disclosures were rejected, it is worth noting that there should be a consistent approach if you are to refer back to previous disciplinary matters. What would that consistency look like and should your disciplinary policy or correspondence be amended to reflect that matters could be opened where relevant and reasonable to future matters especially those raised by a regulator? 

Despite this helpful decision to employers, I would always advise proceeding with an air of caution when reopening disciplinary proceedings and seeking legal advice.