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Liakopoulou v Christie Hospital NHS Foundation Trust

In light of recent events involving Chelsea and West Ham fans on trains this week we would like to highlight a recent case of the week we published involving gross misconduct outside of work time.

This week’s case also involves gross misconduct.

The question this week is:

Should employers consider mitigation and not dismiss an employee for a gross misconduct offence?

The Claimant was employed as a consultant doctor by the Respondent from 2003 to 2010. In 2009 a patient reported that they had been pressured by the Claimant to participate in a medical trial. The patient claimed that the Claimant would be more likely to consider the patient for a transplant if they agreed to participate.

Around this time it also came to light that the Claimant had lied about her qualifications on her CV, medical papers submitted and on the Respondent’s website. The Respondent dismissed the Claimant for gross misconduct and after the Claimant’s appeal to be reinstated was dismissed the case was bought before the Tribunal.

One of the Claimant’s main arguments was that the Respondent had not taken into account her reasonable length of service and good record prior to these incidents. The Claimant argued these as grounds to mitigate her dismissal for gross misconduct down to less serious disciplinary action.

Despite evidence to the contrary the Tribunal found that mitigation had not been properly considered by the Respondent. The Tribunal believed the incident involving qualifications was not gross misconduct and that pressuring patients to participate in medical trials should have been mitigated by the Claimant’s service record.

The Respondent appealed the decision on the grounds that the Tribunal had substituted its own views for that of the Respondent. The EAT upheld the appeal. The EAT held that the Claimant’s actions did amount to gross misconduct and that the nature of the conduct amounted to a serious breach in trust which meant mitigation was not possible, something the employer had argued at the previous Tribunal.

The lesson for employers is:

In disciplinary proceedings always take into account evidence such as service record, length of service and attitude as grounds for mitigation.

Any letter sent to the employee following the disciplinary process should clearly identify the points considered in mitigation and fully explain the reasons for the lesser sanction being imposed. Likewise if the mitigation points are rejected be sure to explain why.

When looking to employ highly qualified staff make sure that that forged or inaccurate qualifications is classified as gross misconduct in the disciplinary hearing.