Double jeopardy and unfair dismissal

Res judicata is a Latin phrase which means ‘a matter judged’. It is a legal principle used to prevent someone from pursuing a claim that has already been dealt with by the courts.

In a recent case, an employee asked the Employment Appeal Tribunal (EAT) to overturn a finding of fair dismissal after an employer reopened internal disciplinary proceedings and dismissed her for matters which had previously attracted a final written warning. Her appeal was based on the principle that an employer should not be able to judge the same issue twice.

In Lyfar-Cisse v Western Sussex University Hospitals NHS Trust, the employee was a clinical biochemist and a director of the Trust. In that role, she had special responsibility for improving race equality. She was disciplined and given a final written warning for behaviour including racial harassment of a white colleague and bullying of another colleague by interfering with her discrimination complaint.

Around the same time, the Care Quality Commission (CQC) completed an inspection which concluded that bullying was rife within the Trust. The Trust was put into special measures and its management taken over by another Trust.

One of the employees who had complained then wrote to an HR director in the new Trust expressing shock that the employee had returned to the role of race equality lead despite the disciplinary sanction. The HR director accessed the disciplinary paperwork for the employee. She told the CEO about her concerns. The CEO concluded that there were issues about the employee’s fitness under the relevant statutory codes to provide leadership on equality issues.

Another disciplinary hearing took place where the employee continued to deny she had done anything wrong. She was dismissed on notice because her conduct fatally undermined her ability to lead on racial equality.

The tribunal said the dismissal was fair. The principal reason for the dismissal was the Trust’s view that it was not appropriate for someone who had been found responsible for discrimination to lead the Trust on race equality. A decision to reopen internal proceedings was unusual but so were the intervening facts, including the findings of the CQC report, the employee’s refusal to accept any responsibility, and the CEO’s decision that the employee could not continue to lead on race equality in light of her conduct. The reason for dismissal was conduct or some other substantial reason (SOSR). The employer’s procedure had been fair and the dismissal was within the range of reasonable responses.

The employee appealed, saying the employer should not have reopened disciplinary proceedings, but the EAT agreed that the dismissal was fair. They said the case of Christou v London Borough of Haringey had found that res judicata did not apply in internal disciplinary proceedings. The earlier disciplinary process was just part of the overall picture about whether the dismissal was fair. The tribunal had given clear reasons about why dismissal was fair in this case and there had been no legal errors. The EAT also agreed with the tribunal that the label on the dismissal – conduct or SOSR – did not matter. The important question was whether the dismissal was within the range of reasonable responses.

It will be unusual for employers to reopen disciplinary cases that have come to an end. In this case, the CQC investigation and conclusions, and new management of the Trust, were the intervening factors which made reopening disciplinary proceedings fair. Without any kind of good reason, reopening a disciplinary matter may cause difficulties if it is used as a vehicle to arrive at a different decision from the original one. It is also worth noting that the employee in this case had been found to have racially harassed a colleague but allowed to remain the lead on race equality in the Trust. This conflict should have been ironed out as part of the initial disciplinary process.