A senior district nurse with 38 years’ experience was unfairly dismissed after she told management of her wish to instigate her employer’s formal whistleblowing procedure, an employment tribunal has judged.
It followed numerous safeguarding concerns raised to her bosses about her team’s workload, employee stress and sickness, and a need for the retraining of healthcare assistants. The nurse had also raised concerns on the risk to patient safety, including one death she felt may have been preventable.
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Ms Fairhall, who started work in the NHS in 1979, was employed by North Tees and Hartlepool NHS Foundation Trust as a clinical care co-ordinator, overseeing a team of around 50 district nurses in the area.
In 2015 the claimant was personally commended by the Care Quality Commission for the manner in which she conducted her team and for the quality of care and leadership skills she demonstrated.
Later that year Fairhall recorded an entry on the trust’s risk register stating that a new requirement by the local authority for district nurses to monitor patients’ prescriptions was putting pressure on district nursing resources.
Over the next 10 months the tribunal found that Fairhall, who had a “clean and unblemished” employment record, reported 13 matters that she said amounted to protected disclosures. The tribunal found that all her disclosures had “sufficient factual content and specificity to show that the health or safety of patients and staff was being or was likely to be endangered”.
On 21 October 2016 the claimant told the trust’s care group director, Julie Parks, that she wished to instigate the formal whistleblowing procedure. Fairhall then went on annual leave but on her return to work on 31 October she was informed she had been suspended.
The tribunal particularly takes into account the close proximity in time between the last of the claimant’s disclosures and the declared intention to formerly engage the respondent’s whistleblowing policy, and the decision to suspend the claimant” – Judge Johnson
The suspension, initially for 10 days, was “to allow an investigation to take place following allegations of potential gross misconduct relating to concerns regarding your leadership and also concerns in relation to inappropriate and unprofessional behaviour including bullying and harassment”.
Fairhall remained suspended for 18 months until, after various investigations, grievances and appeals, she was dismissed in April 2018. Employment judge Johnson found North Tees and Hartlepool NHS Foundation Trust’s investigation into the alleged misconduct to be “inadequate and unreasonable in all the circumstances of the case”.
“No explanation was given for the unreasonable delay in interviewing the relevant witnesses, particularly those who are said to have expressed concerns about the claimant’s behaviour,” said the judgment. “No explanation was given as to what was to be the remit of the investigation or of any instructions given to the investigating officer.”
The judgment, published yesterday, also criticised North Tees and Hartlepool trust for failing to put any specific allegation to Fairhall. It said respondent’s witnesses referred to little more than “themes” or “perceptions” by staff, none of which contained a level of detail which would have enabled the claimant to respond.
It said: “Many of the questions put to the staff contained what are commonly called ‘closed questions’ which the tribunal found to be indicative of a requirement from the questioner that the interviewee would actively seek to identify any matters which may be detrimental to the claimant.”
The tribunal found that no reasonable employer in all the circumstances of this case, would have conducted the investigation in this manner. “The tribunal found that the disciplinary hearing itself was unfair and unreasonable from the outset, in that it did not set out with any precision the allegations of misconduct which the claimant was expected to answer.”
Fairhall’s dismissal was found to be automatically unfair and the tribunal was satisfied that the principal reason for her dismissal was that she had made protected disclosures. “In coming to that conclusion, the tribunal particularly takes into account the close proximity in time between the last of the claimant’s disclosures and the declared intention to formerly engage the respondent’s whistleblowing policy, and the decision to suspend the claimant.
“The tribunal also takes into account the unreasonable nature of the investigation, the delay in undertaking the investigation and the length of the suspension.”
The judgment said the tribunal found it likely that the task of investigating the claimant, instigating disciplinary proceedings and ultimately dismissing her, were influenced by a number of different people in the trust’s hierarchy including the director of nursing Julie Lane, the associate director of community services Julie Parks and the general manager Steve Pett.
It said: “It was appropriate to attribute their motivation to those carrying out the process which led to the dismissal. The respondent has failed to produce any evidence to explain the claimant’s treatment and provided unsatisfactory explanations for other matters”.
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A final remedy hearing will be convened in due course. A spokesperson for North Tees and Hartlepool NHS Foundation Trust said: “We acknowledge the outcome of the tribunal. We are now considering next steps.”
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