Whistleblowing nurse awarded £127,000 following dismissal

Broomfield Hospital, near Chelmsford, which is part of the Mid Essex Hospital Services NHS Trust.
Image: Nick Ansell/PA Archive/PA Images

A whistleblower who complained that staff at an NHS trust were being bullied and not given proper breaks has been awarded more than £127,000 by an employment tribunal.

Andrew Smith, a nurse at the Mid Essex Hospital Services NHS Trust, was dismissed from his role in 2015 because he was seen as a nuisance, the tribunal was told.

Smith, who had been a nurse for 28 years and had an “unblemished” career, was a trade union representative for the Royal College of Nursing.

During 2013 and 2014 he made a number of protected disclosures about medication and patient care issues and claimed that staff were being bullied and harassed by managers and not provided with adequate rest under the Working Time Regulations.

After these issues were raised, he was summoned to a meeting with the organisation’s head of nursing and an HR representative. Following this meeting, colleagues told him that they thought there was a “witch hunt” against him as the operating department practitioner was gathering statements about him.

Later, in April 2014, he made further whistleblowing claims. These included concerns about staff recruitment and retention payments, rest breaks, allegations of bullying and harassment a lack of equipment and supplies in the trust’s operating theatres.

The NHS trust claimed that he had displayed “disruptive behaviour” at a meeting in July 2014 and had been sending confidential and sensitive emails to his personal email address after being told to stop doing so.

Mr Smith was subjected to disciplinary proceedings in July 2014 for gross misconduct and suspended from work. He was dismissed in July 2015.

In 2017 an employment tribunal sitting at the East London Hearing Centre found he had been unfairly dismissed and subjected to detriment because he had made protected disclosures. However, an appeal from the Mid Essex Hospital Services NHS Trust was taken to the Employment Appeal Tribunal, which found the first tribunal had failed to consider whether the “nuisance” factor was the real or principal reason for Smith’s dismissal rather than his protected disclosures.

The case was reconsidered at an employment tribunal in July 2018. Employment judge Warren found that the dismissal and appeal officers were “very much aware of the protected disclosures and what a nuisance those disclosures had been”, which meant that “as a whistleblower, he was a nuisance, and so they dismissed him because he was a whistleblower, because of the protected disclosures”.

Mr Smith was awarded £127,389.75 in compensation last month. This figure includes a basic award of £10,604.37; a compensatory award of £82,856.69; £22,000 for injury to feelings; and £11,928.69 for loss of pension.

The Mid Essex Hospital Services NHS Trust told the BBC that it would reflect upon the tribunal’s findings.

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