5th December, 2013

Paul Gilroy QC in successful defence of NHS Trust

Paul Gilroy QC in successful defence of NHS Trust against 7 figure claim by Consultant Cardiothoracic Surgeon for Sex Discrimination, Victimisation and Unfair Dismissal

An NHS Trust dismissed a Consultant Cardiothoracic Surgeon on conduct grounds after she had used a sample product known as “Kryptonite”, a bonding material, which had been handed to her by one of two medical sales representatives in theatre, to assist in closing a patient’s sternum at the conclusion of open heart surgery. At the relevant time, the Claimant had a “live” final written warning in respect of conduct of a different nature on her file. The Trust took account of the final written warning and the instant offence in concluding that dismissal was merited.

The Claimant issued Employment Tribunal; proceedings, claiming a 7 figure sum in compensation for sex discrimination, victimisation and unfair dismissal.

The sales representative providing the sample product did not have permission to be in theatre. His colleague did. The Claimant knew of the product, but had not previously used it. The Trust argued that the product should have been approved for use by the Theatre Manager and ratified under the Trust’s New Technology Policy; that the patient had not been “consented” for the purposes of the use of the product, and that even if the medical representative who handed the product to the Claimant at the conclusion of the operation had been cleared by a third party to attend theatre, the decision to use the product was made by the Claimant on the spur of the moment, at the suggestion of the representative whose company was promoting its sale. No training had been provided to relevant staff in respect of the use of Kryptonite and its implications, specifically in relation to the steps which needed to be taken in the event of the patient suffering post-operative complications. The bonding properties of the relevant product are such that necessitate the ready availability of a sternal saw. A sternal saw, unsterile, was left by the patient’s bed after the operation. Nursing staff had not been instructed how to put it together.

The Claimant had brought Tribunal proceedings for sex discrimination against the Trust and various named Consultants some 10 years ago. The Claimant contended that her dismissal was the result of further sex discrimination against her and/or by way of victimisation given that she had pursued her earlier discrimination claims. She alleged that there was significance in the fact that whereas she had been the subject of a disciplinary investigation in respect of the Kryptonite matter, the Trust had not conducted a more generic critical incident investigation. The Claimant contended that the appearance in theatre of two medical representatives, when only one had permission to be present, was not her fault. The Respondent considered that the Claimant was the most senior employee present and had authority to control the situation. Further, the Claimant had expressly arranged for only the first representative to be present. The Claimant alleged that she thought that the product was cleared for use but took no steps to ascertain whether this was, in fact, the case, and proceeded regardless of the risk to patient safety. The Claimant suggested that she had agreed her intended course of action with the Anaesthetist present, but the decision to use the product was the Claimant’s responsibility. The Claimant contended that it was common for theatre staff or accredited representatives to offer her products to test in theatre. The Respondent argued that it was not common for products of this nature to be offered to a surgeon to test, given the inherent dangers. The Claimant alleged that she had been singled out regarding this incident as others were also involved, and that others may have been treated differently when similar circumstances had arisen in the past. However, the Claimant was ultimately responsible for the relevant incident and the Trust maintained that it had taken appropriate action across the board.

The Tribunal held that it was open to the Respondent to conclude that the Claimant’s conduct fell below the standards required of her, and that the decision to dismiss her was not connected to her gender or the fact that she had brought earlier discrimination proceedings.

Ms E Griffiths v Liverpool Heart and Chest NHS Foundation Trust

Paul Gilroy QC appeared for the NHS Trust. For the full judgment, please click HERE.

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