The Christie Hospital NHS Foundation Trust v Liakopoulou

An Employment Tribunal must decide whether dismissal falls within the range of reasonable responses. It must not substitute its own assessment of the appropriate sanction for that of the employer.

Gross misconduct does not automatically make dismissal reasonable. Mitigation remains relevant and must be considered. Where the disciplinary process is considered as a whole, however, an appeal panel may properly assess the mitigation and conclude that it does not outweigh an irreparable breakdown of trust and confidence. A Tribunal that reweighs misconduct and mitigation before declaring dismissal too harsh commits an error of law. On the facts, the conclusion that dismissal fell outside the reasonable range was also perverse.

The claimant, a consultant haematologist, was summarily dismissed for two findings of gross misconduct. She had pressured a patient concerning participation in a clinical trial and had used qualifications which she was not entitled to use publicly.

The Manchester Employment Tribunal held that the employer had satisfied the misconduct test and that both matters amounted to gross misconduct. It nevertheless found the dismissal unfair because mitigation had not been properly considered and dismissal was too harsh. The employer appealed against that finding.

The central issue was whether the Tribunal had impermissibly substituted its own view of the appropriate sanction, notwithstanding the employer’s disciplinary and appeal processes.

1. Appeal allowed. The Employment Tribunal’s finding of unfair dismissal was set aside. The Appeal Tribunal proposed to substitute a finding that the claimant had not been unfairly dismissed.

2. The fairness of the procedure had to be assessed as a whole, including the appeal. Even if the original disciplinary panel had not adequately considered mitigation, the appeal panel plainly did so. Reading its decision fairly and as a whole, the appeal panel independently weighed the claimant’s mitigation, including further material submitted on her behalf, against the serious breach of trust and confidence.

3. The appeal panel did not apply an inflexible rule that gross misconduct automatically required dismissal. It concluded on the particular facts that mitigation was insufficient to preserve the claimant’s employment. That was a permissible assessment.

4. In finding that dismissal was too harsh, the Employment Tribunal conducted its own balancing exercise between the misconduct and the mitigating factors. Despite its stated awareness of the correct approach, it thereby substituted its own view of sanction for that of the employer. That was an error of law in applying section 98(4) of the Employment Rights Act 1996.

5. Alternatively, if the Tribunal had applied the range-of-reasonable-responses test rather than substituted its view, its conclusion that dismissal was outside that range was one which no reasonable Tribunal could have reached on these facts. The costs application under Rule 34A of the Employment Appeal Tribunal Rules 1993 was refused.

• Employment Appeal Tribunal: Allowed the employer’s appeal and proposed to substitute a finding that the claimant had not been unfairly dismissed.
• Manchester Employment Tribunal: Its decision, sent to the parties on 11 February 2014, upheld the unfair-dismissal claim but dismissed the sex-discrimination, race-discrimination and protected-disclosure claims.