The Employment Appeal Tribunal (EAT) has concluded that it was not unfair to dismiss an employee despite the disciplinary issues having already been addressed under previous disciplinary proceedings which had resulted in a final written warning. While it is rare to reopen concluded matters, there is no general rule against ‘double jeopardy’ and this case is an example of where it was deemed fair to revisit the issues.
The employee held a senior position in an NHS Hospital Trust and had responsibility for improving racial equality. She faced disciplinary proceedings after numerous allegations of bullying, harassment, and discrimination, and ultimately received a final written warning. However, in the meantime, a report by the Care Quality Commission concluded that bullying, harassment, and discrimination were “rife” in the organisation, and the Trust was placed into special measures and taken over by another Trust’s executive team. The new chief executive questioned the previous disciplinary findings and instigated the process which led to the employee’s dismissal on the basis that she was not objectively credible or accountable to lead on race issues.
The EAT found the dismissal fair. Employers should act with caution when considering whether to re-open a disciplinary case that has been concluded, however in the right circumstances this may be appropriate.
