Here at ViewHR, we like to stay up to date on the latest cases heard by the Employment Tribunals (ET) and the Employment Appeals Tribunal (EAT), to provide valuable insights. Our goal is to identify key judgments that may impact our clients and their employment practices. In this blog, we will explore some of the most interesting cases heard by the tribunals and highlight their implications for employers.
Dr Vivienne Lyfar-Cissé v Western Sussex University Hospitals NHS: Dismissal Case
In the case of Lyfar-Cissé v Western Sussex University Hospitals NHS Foundation Trust, the Employment Appeal Tribunal (EAT) found that it was not unfair to dismiss an employee after reopening a previously concluded disciplinary process that had led to a final written warning.
The Claimant had made racist comments to her manager saying he was ‘everything she despised in a white manager’ and engaged in bullying behaviour towards a colleague, leading to her receiving a final written warning, which lasted for a period of 12 months.
However, when new management took over the trust and questions were raised about the suitability for the Claimant to hold her role in promoting racial equality. The disciplinary process was reopened, and the employee was ultimately dismissed.
The EAT held that while it is unusual to reopen disciplinary proceedings, the ultimate question in an unfair dismissal claim is whether, in all the circumstances, the dismissal was fair or unfair. In this case, the decision to reopen the disciplinary process and dismiss the employee was fair due to new management scrutiny, the employee’s attitude and credibility, and the ongoing suitability for her role.
This case serves as a reminder that the ultimate question in an unfair dismissal claim will always be the factual question of whether the dismissal was fair or unfair, and that exceptional circumstances may warrant the reopening of a previously concluded disciplinary process.
Kitchener v The Thinking Schools Academy Trust: Dismissal and the importance of investigation
In October 2021, a student, Student A, was behaving disruptively. She walked out of her lessons and was swearing, wandering around corridors, throwing items into classrooms and at people, and barging past visitors. Student A was expelled from the school by the Headteacher.
The Claimant (Kitchener) was tasked with ensuring Student A left the school. Student A became physically abusive towards the Claimant. Kitchener physically restrained the student; however, he lost grip and the student continued down the corridor. The events that took place were recorded on CCTV.
The next day an investigation was started and the Claimant was asked to work from home for a period of three weeks. 64 seconds of footage was collected from CCTV (the main altercation), although seven minutes worth of video were available detailing the context – this was excluded from the investigation; ‘it would have shown Student A’s behaviour on the day and the de-escalation efforts that were unsuccessful’.
The investigation found there was a case to be heard at a disciplinary hearing. Following a disciplinary procedure, on 6 April 2022, the Claimant was dismissed, without notice, for gross misconduct. The Respondent confirmed that the disciplinary panel did consider the option of a final written warning but discarded it as an option. The school confirmed that once it had identified an act of gross misconduct, the panel felt bound by the Respondent’s policy to dismiss without notice.
The Claimant appealed. An appeal hearing was convened on 23 May 2022. On 27 May 2022, the Claimant was informed that the result of his appeal was that he would still be dismissed for gross misconduct, but after the expiry of his notice period.
The Employment Tribunal judged that the Claimant was unfairly dismissed.
The Tribunal found the decision to dismiss unfair for several reasons, one such reason was: ‘the Respondent failed to consider any sanction short of dismissal’ because they did not consider key four elements:
1.The Claimant’s unblemished record.
2.The Respondent was obliged under their own policies to provide training and they failed to do so.
3.The scope of the relevant policies. There are strong similarities between the DfE Guidance and the Respondent’s Positive Handling Policy.
The key and common themes are:
(a) Handling a student should be a last resort.
(b) De-escalation techniques should be used first
(c) Handling a student is a matter of judgment.
(d) There are ways of physical handling that are always inappropriate and purposes for which it should not be used (such as for punishment).
(e) However, handling a student in an appropriate manner can be appropriate in certain circumstances. These include preventing harm to the student or other people, preventing damage to property, and where a student’s prejudice is the maintenance of good order and discipline.
Both policies envisage physical intervention as being legitimate in some circumstances, which this was.
4. The conduct of Student A leading up to the incident. The disruption and physical abuse displayed by Student A is something that the policies explicitly envisage handling may be used for. The panel did not take that into account at all.
This case serves as a reminder to employers of the importance of ensuring that they consider all relevant factors and any mitigating circumstances, before deciding on a sanction. Employers must also provide their employees with adequate training and support to handle difficult situations safely.
Delayed Disciplinary Procedure
While not a case from an Employment Tribunal, the situation of Chief Petty Officer Michael Smith and Leading Aircraft Engineering Technician Jordan Street serves as a good reminder for employers and people professionals.
What happened? While onboard HMS Queen Elizabeth sailors were celebrating ‘Pickle Night’, commemorating the 1805 victory of the Battle of Trafalgar and the death of Lord Vice-Admiral Nelson, when an argument took place which led to CPO Smith punching LAET Street while he lay on the floor.
Disciplinary proceedings were commenced; however, a military court in the UK has criticised the handling of the case as it was delayed by 11 months. The delay was due to poor administration by the ship, according to Assistant Judge Advocate Jane England, who described the situation as “unacceptable”.
The delay was a “mitigating factor” in the successful appeal of the demotion of the perpetrator of the assault.
Employers can learn from this incident that proper administration and effective communication are key to ensuring that disciplinary procedures are handled in a timely and effective manner. Failure to do so can lead to delays, frustration, and potentially negative consequences for all parties involved. Employers should ensure that they have clear procedures in place for dealing with disciplinary matters and that these are communicated effectively to all employees. It is also important to ensure that communication channels are open and effective so that issues can be addressed quickly and efficiently.
By staying up to date on these cases, employers can learn from past mistakes and minimise the risk of facing similar legal challenges in the future.
If your organisation is currently facing employment-related challenges, please get in touch with ViewHR; one of our experienced team members would be happy to help.
