EAT Rule In Favour Of A Nurse Who Was Unfairly Dismissed For Wanting To Commence NHS Whistleblowing Process

University Hospital North Tees & Hartlepool NHS Foundation Trust v Fairhall

Background

Mrs Fairhall had 38 years’ continuous service with the National Health Service. Between December 2015 and October 2016, she raised concerns about the increased workload for the team of district nurses that she managed and the resulting impact this had in terms of absence levels and performance leading to patient care concerns.

Following the death of a patient, Mrs Fairhall sought to raise her concerns formally under the Trust’s whistleblowing policy.

Mrs Fairhall was then suspended, during which she raised a grievance that was rejected, and her employment was terminated on grounds of conduct. She appealed against her dismissal and that was also rejected.

Employment Tribunal (ET) proceedings

The ET concluded that the Claimant’s treatment was grossly unfair and was the culmination of a process, involving numerous people, designed to get rid of her because she had made protected disclosures (or “blown the whistle”). The ET found that the Claimant had been dismissed for the reason, or principal reason that she had made protected disclosures.

Employment Appeal Tribunal (EAT) proceedings

The Respondent appealed that decision to the EAT but was unsuccessful. The EAT found that the ET properly considered the reasoning process of the chair of the panel and had concluded that Mrs Fairhall had been dismissed because of the whistleblowing.

The judgement shows the careful approach which will be taken by the Courts when considering whistleblowing cases and in particular, where the employer fails to provide any reasonable alternative explanation for their treatment of a whistleblowing employee.

The EAT also considered an appeal against the finding of the original ET that steps taken in the process leading to Mrs Fairhall’s dismissal (such as her suspension and the manner in which her grievance was handled) also amounted to detrimental treatment because of whistleblowing and found that this issue should be sent back to the ET to consider further, as well as considering compensation payable to Mrs Fairhall.

Comment

Whistleblowing cases can be extremely complicated.

Employers need to adopt a careful approach to dealing with employees who have raised concerns about issues that are likely to constitute protected disclosures as they will benefit from protection against dismissal and detrimental treatment.

Compensation for dismissal on grounds of having made a protected disclosure is not capped and for claimants in sectors such as healthcare and education could be considerable if they can show career-long losses. Successful claims for detrimental treatment also entitle claimants to seek damages for injured feelings, in addition to any economic losses they have suffered.

How Nelsons can help

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