Dr Vivienne Lyfar-Cissé is a warrior in the fight for racial justice within the NHS. She leads the national BME network and until September 2017, she was Associate Director of Transformation at Brighton and Sussex University Hospitals (BSUH) NHS Trust and chair of its BME network. She worked her way up within the trust over 34 years, first as a biochemist before becoming Associate Director in 2014.

She is now locked in a legal battle with her boss, Marianne Griffiths, who will be retiring from the trust, now called University Hospitals Sussex NHS Trust (UH Sussex), this summer. A reconsideration hearing of the Employment Tribunal was held last Tuesday and Wednesday, 22 and 23 February.

At the centre of this dispute is the question of whether, as the newly appointed Chief Executive from 01 April 2017, Ms Griffiths, had the legal right to revisit a disciplinary procedure that had already concluded in 2016 in order to increase the sanction of a final written warning (which was accepted by the BSUH Board) to dismiss Dr Lyfar-Cissé.

Ms Griffiths told the Employment Tribunal that her decision “flowed” from Ms Cashman’s disciplinary investigation outcome, following another investigation by The Honourable Mrs Justice Hill and Mr. Abbi Alemoru. She cited Some Other Substantial Reason (SOSR) to justify her dismissal decision on the basis that the charge of discrimination, harassment and victimisation by the doctor, was incompatible with her role and also meant she failed the fit and proper person test (Regulation Five) as a senior manager.

Dr Lyfar-Cissé argued that Ms Cashman had considered her role as a senior manager in deciding her sanction of a final written warning. Therefore, Dr Lyfar-Cissé said there was no lawful process by which Ms Griffiths could increase the sanction to dismissal, because she did not agree with the outcome of a due process.

Dr Lyfar-Cissé also argued that the true reason for her dismissal, and all the actions short of dismissal, including the application of Regulation Five; was because of her previous employment tribunal claims, which were protected acts. She believes her dismissal was premeditated.

Earlier Tribunals had upheld two of the doctor’s claims of racism and victimisation against the trust and the trust had also settled a third claim ‘out of court’ whilst accepting liability for racial discrimination and victimisation of the doctor.

In March 2019 the Employment Tribunal found that Dr Lyfar-Cissé’s dismissal was fair. Her appeal against the Judgment was stayed by the Employment Appeal Tribunal (EAT) to first allow the reconsideration hearing to take place.

Last Tuesday at the reconsideration hearing, the employment tribunal heard that new evidence had emerged. Ms Griffiths said, at a roundtable meeting of the Health Service Journal (HSJ) on 08 July 2019, that previous employment tribunals against the Trust had contributed to a “toxic”, “extremist, anti-organisational” BME structure at UH Sussex that had to be challenged.

HSJ’s minute of the meeting states that Ms Griffiths said upon arrival in her post as CEO in 2017: “There was also a need to lead from the front: the trust had to do some ‘brave things’ which led to employment tribunals but was a signal to the organisation that they were taking the issues seriously.”

In 2019 Ms Caroline Browne, on behalf of the members of the BME network, brought a separate claim of victimisation against Ms. Griffiths’ because of her comments in the HSJ article above. Ms Griffiths’ Counsel, Mr Kibling, stated in his written submissions that her: ‘reference to the Employment Tribunal cases in the HSJ published minute were specifically in relation to Dr Lyfar-Cissé’s claims’ and not anything that Ms. Browne had done. A fact that Dr Lyfar-Cissé argued supports her claim of victimisation against Ms. Griffiths, that the real reason for her dismissal were her employment tribunal claims.

At the reconsideration hearing, Employment Judge Balogun dismissed the case. She found that Dr Lyfar-Cissé had inferred that Ms Griffiths’ reference to employment tribunals was a reference to her in the Health Service Journal minute of the meeting. She disliked the fact that the minute was not a verbatim account and was not written by Ms Griffiths.

However, she said that Mr Kibling’s written submission in the Caroline Browne case was not factual evidence, rather it was an argument put forward by the trust when defending the claim and she did not allow this evidence. The judge said there was no new evidence and no prospect that the original judgment would be overturned.

Judge Balogun said: “In light of the above, we find that there is no reasonable prospect of the original decision being overturned. The application for reconsideration is therefore dismissed.”

Dr Lyfar-Cissé said: “I have submitted an application to the Tribunal for a reconsideration of the Judgment given paragraph 11 is incorrect.  It should be amended to correctly show that Mr Kibling’s two written submissions before the Tribunal, explains it is Ms Griffiths’ reference to Employment Tribunal cases in the HSJ article, that is a reference to my Employment Tribunal claims. I intend to appeal.”

UH Sussex was approached and said: “The Trust is aware of the judgment of 23 February but has no further comment.”

Dr Lyfar-Cissé’s full appeal hearing before the EAT will commence after the reconsideration process has concluded. The appeal will decide whether Ms Griffiths had the legal right to revisit the concluded disciplinary process in order to dismiss her and whether Regulation Five did indeed apply to her role. It was BSUH’s policy that it did not apply to Dr Lyfar-Cissé’s role.

A review of Regulation Five by Tom Quark QC in 2018 ruled that whilst, directors at Board level are clearly covered by the regulation, the reference to others performing similar functions was ambiguous. He said this ambiguity could lead to NHS trusts using the test as a ‘last resort dismissal.’

Mr Quark wrote that Regulation Five was used: “as a vehicle for Trusts to have another bite of the disciplinary cherry by using the FPP (fit and proper person) test as an add-on measure to remove individuals on the ground that they were not FPP compliant, after disciplinary proceedings had been concluded with only a warning or suspension.”