An embryologist who complained about understaffing, old equipment and procedures at a fertility clinic in Glasgow was unfairly dismissed, an employment tribunal has found.
Ms Henderson was the most senior embryologist at TFP GCRM Glasgow Fertility Clinic, which also trades as The Fertility Partnership or TFP, and is Scotland’s only fertility clinic.
Henderson considered the laboratory to be understaffed and not working optimally or efficiently. Some of the equipment was old and at times would not function properly.
Whistleblowing
£3m award for unfairly dismissed Isle of Man medical director
In March 2019 Henderson raised concerns about IVF procedures and fertilisation success rates. Poor outcomes were becoming more common, which she said was stressful for her team and affected patients’ IVF prospects.
Staffing issues were raised in August 2019. Henderson believed there was a lack of suitably trained staff in the lab and that staff were struggling with the demands placed on them. Procedures were being completed at a higher speed than usual and without breaks.
She asked her manager, Mr Tomnay, if he could review the process of scheduling patients for treatment so demand could be better managed. He did not make the suggested changes.
She again raised staffing concerns in September 2019.
In October 2020 a patient’s sample was wrongly disposed of. Henderson again raised concerns, stating: “The incident in general is a reminder of how stretched we are in the lab.”
Henderson raised further concerns about staffing and workload in 2021, including to the company’s senior HR business partner, Ms Young.
In August 2021, she was invited to a meeting with Young. The claimant presumed it would be about her concerns, but what followed were “pre-termination negotiations”. At the end of the meeting, Henderson was asked to leave the premises and to not come into work until further notice.
That October she received a letter suspending her. It detailed allegations against her including failure to follow reasonable management requests, and her involvement in incidents that should have been reported to the regulator, the Human Fertilisation and Embryology Authority.
The letter said that if these allegations were upheld they could amount to “serious negligence/gross misconduct and/or lead to a loss of trust and confidence in your ability to perform your role”.
The company launched an investigation into the reportable incidents and found they were examples of “gross incompetence”.
Meanwhile, Henderson had submitted a grievance, as she felt the criticisms of her performance raised in the August 2021 meeting were unfair, and felt she had been singled out. Her written grievance went on to explain she had raised a number of issues about staffing and processes.
The majority of her complaints were not upheld, but the company partially upheld her concerns about staffing and workloads. She submitted an appeal but this was never heard, as the focus switched to the disciplinary process. She was dismissed from the organisation in February 2022.
The employment tribunal in Glasgow found that her concerns about staffing issues amounted to protected disclosures and had influenced the decision to dismiss her, but her complaints were not the sole or principal reason for her dismissal. It found that she was ultimately dismissed because of her conduct, namely the reportable incidents.
However, the tribunal found that dismissal as a sanction fell outside the band of reasonable responses to the claimant’s conduct. The judgment suggested that she should not have been held entirely culpable for the matters that were the basis of the disciplinary allegations, as responsibility was shared by others.
Sign up to our weekly round-up of HR news and guidance
Receive the Personnel Today Direct e-newsletter every Wednesday
A further hearing will be held to discuss compensation for her dismissal.
Latest HR job opportunities on Personnel Today
Browse more human resources jobs
