Dr Vivienne Lyfar-Cissé v Western Sussex University Hospitals NHS Foundation Trust & Ors.

Re-opening a concluded disciplinary process is unusual and requires sufficient justification. It is not, however, barred by res judicata or abuse-of-process doctrines. The decisive question in an unfair-dismissal claim remains whether dismissal was fair in all the circumstances under section 98(4) of the Employment Rights Act 1996.

Where an employee's established misconduct is incompatible with a senior equality leadership role, an employer may have a potentially fair conduct or SOSR reason for dismissal. The tribunal must assess the whole context, including any change in management, the employee's role, the seriousness of the earlier findings, and the procedure adopted.

The Appellant, a clinical biochemist and Associate Director of Transformation, was dismissed after new management reconsidered whether she could continue to lead race-equality work following earlier disciplinary findings and a final written warning.

The London South Employment Tribunal dismissed her claims for ordinary and automatically unfair dismissal, whistleblowing detriment and victimisation. It found that protected acts and disclosures did not motivate the Respondents. It also held that dismissal was potentially fair for conduct or SOSR and was within the range of reasonable responses.

After the appeal was stayed, the Tribunal refused reconsideration based on a later journal article. The Appellant appealed both decisions. The central issues included the fairness of reopening the disciplinary matter, comparator treatment, and whether the article could affect the original findings.

1. Appeals dismissed. The Employment Tribunal made no error of law in dismissing the unfair-dismissal, victimisation and whistleblowing claims, and its refusal of reconsideration was correct.
2. Reopening a concluded disciplinary process is unusual and requires sufficient justification. However, there is no rule preventing a second disciplinary process. The ultimate statutory question is whether the dismissal was fair in all the circumstances under section 98(4) of the Employment Rights Act 1996. The Tribunal correctly applied that question.
3. The reason for dismissal could properly be characterised either as conduct or as some other substantial reason. The employer considered that the Appellant's established misconduct was incompatible with her senior role leading race-equality work. In this case, the choice of label did not affect the fairness assessment.
4. The Tribunal was entitled to find the dismissal within the range of reasonable responses. The combination of the Trust being in special measures, serious equality-related findings against the Appellant, her particular leadership role, the management view of the fit-and-proper-person requirement, and her continued denial of responsibility made the case exceptional. The procedure adopted was careful and appropriate.
5. Although the Tribunal ought expressly to have resolved the comparator contention, its overall factual finding that protected acts and disclosures did not motivate the Respondents could not have been disturbed. The evidence gave an explanation for the different treatment of the other managers.
6. The journal article was new evidence in one sense, notwithstanding errors in the reconsideration decision's expression. Properly understood, it supported the Respondents' case that the Trust had to address conduct contributing to poor race relations. It could not have materially assisted the Appellant and did not meet the test in Ladd v Marshall.

• Employment Appeal Tribunal: Both appeals were dismissed: [2022] EAT 193.
• London South Employment Tribunal: The Tribunal dismissed the substantive claims in a decision sent on 13 March 2019.
• London South Employment Tribunal: The Tribunal refused reconsideration on 25 February 2022.