Nursing officer was dismissed for making protected disclosures

The Employment Appeal Tribunal has upheld a decision that a nursing officer was dismissed solely because she had made protected disclosures.

Joanne Stronach Head of Employment & HR reports on this recent case.

The officer, Ms Fairhall, had worked in district nursing for University Hospital North Tees and Hartlepool NHS Foundation Trust for 38 years and managed 50 nursing staff.

In 2015 she was commended for her care and leadership qualities. The local authority then implemented a new policy that Fairhall said had increased her staff’s workload and stress-related absences.

Over 10 months, she made 13 protected disclosures expressing concerns that her team were under considerable pressure and lacked resources. After a patient died, she told a superior that she wanted to instigate the trust’s whistleblowing policy.

A few days later she was suspended. Her suspension lasted for nearly 18 months, until she was dismissed in April 2018 following the trust’s disciplinary process.

She brought a claim to the Employment Tribunal, which found manifest failings and fundamental unfairness by the trust in dealing with her suspension, its investigation into her conduct, a grievance she had raised about the disciplinary process, her eventual dismissal and its rejection of her internal appeal.

The tribunal found that there had been no reasonable investigation and no evidence that could have led a reasonable employer to dismiss Fairhall for any reason related to her conduct. It rejected the evidence of the chair of the disciplinary panel, finding her unreliable and disingenuous.

It concluded that the panel’s principal reason for dismissal was that Fairhall had made protected disclosures. It further held that the trust had subjected her to individual detriments prior to the dismissal, including the suspension and various failures in the way the disciplinary process was conducted.

The Employment Appeal Tribunal has upheld that decision.

However, it held that the tribunal’s reasoning regarding the detriments themselves was extremely brief, with no separate analysis of each one. It did not sufficiently show the tribunal’s analysis of the person or persons responsible for each detriment.

If individual steps in the process leading to dismissal were to be held as individual detriments, they required separate analysis, rather than being treated as subsidiary to the main claim of dismissal.

Those matters were remitted to the same tribunal for further consideration.

If you would like more information about the issues raised in this article or any aspect of employment law please contact Joanne on 01228 516666.