Whistleblowing Nurse’s Dismissal ‘Grossly Unfair’
04 Nov 2021
There are few things more serious in an employment context than sacking a whistleblower for performing a valuable public service. The Employment Appeal Tribunal (EAT) made that point in the case of a highly regarded nurse who was treated grossly unfairly for doing what she considered to be her duty (University Hospital North Tees & Hartlepool NHS Foundation Trust v Fairhall).
The nurse had an unblemished employment record stretching to 38 years and had received commendations for her leadership skills, positivity and enthusiasm. On a number of occasions, she expressed concern to her NHS trust employer that her dedicated team of district nurses was being subjected to an excessive workload, resulting in an increasing number of absences due to stress and anxiety.
She bore responsibility for risk management and safeguarding issues and, following a patient’s death, informed her manager that she wished formally to instigate the trust’s whistleblowing procedure. She went on a brief period of leave soon afterwards and returned to find herself suspended. A disciplinary process followed, culminating in her dismissal.
After she launched proceedings, an Employment Tribunal (ET) found, amongst other things, that she had been automatically unfairly dismissed by reason of whistleblowing. The loss of her job was the grossly unfair result of a process, involving numerous people, that was designed to get rid of her because she had made protected disclosures in the public interest.
Rejecting the trust’s appeal against that ruling, the EAT noted that it was hard to see how the findings of the ET could have been more critical of the trust. An attempt had been made to beef up the case against her by suggesting that she had dishonestly handled charitable donations made by patients. There were no reasonable grounds for any such accusation and those responsible for her dismissal had no genuine belief that she had done anything wrong.
The ET had described in excruciating detail the manifest failings and fundamental unfairness of the trust in dealing with her suspension, the investigation into her conduct, her dismissal and the rejection of her internal appeal. It was therefore unsurprising that the trust had not challenged the ET’s further findings of wrongful dismissal and ordinary unfair dismissal.
The EAT found that the ET had given insufficient reasons when dealing with alleged incidents of whistleblowing detriment that preceded her dismissal. Those matters were sent back to the same ET for further consideration. In all other respects, the trust’s appeal was dismissed. The amount of compensation due to her would also be considered at a further hearing, if not agreed.