• Robert Spicer

Whistleblowing: more guidance

WHISTLEBLOWING Thought processes of dismissing officer Case University Hospital North Tees & Hartlepool NHS Foundation Trust v Fairhall (2021) Morning Star, August 17, Employment Appeal Tribunal Facts Ms F was a senior nurse employed by UHNT. She had been employed by the NHS for 38 years and had a clear employment record. She became concerned when, following a change of policy by her employer, her team of district nurses had an increased workload. Ms F was concerned about a possible impact on patient safety. Following the death of a patient, Ms F informed her employer that she wanted to instigate the formal whistleblowing policy. She was then suspended, subjected to a disciplinary investigation and dismissed. She complained of automatic unfair dismissal on the basis that she had made a series of protected disclosures. The employment tribunal (ET) upheld the claim and made the following points: · Ms F’s suspension had been unreasonable and unjustified. The suspension was based on allegations of potential gross misconduct and concerns related to inappropriate and unprofessional behaviour including bullying and harassment. In fact, no such allegations had been made. · The treatment of Ms F was grossly unfair and was the culmination of a campaign to get rid of her because she had made protected diclosures. The employer appealed to the EAT. Decision 1. The appeal was dismissed. 2. Tribunals should use their common sense. 3. Where a claimant has set up a prima facie case that the reason for their dismissal was because of whistleblowing, the tribunal did not need to consider other potential reasons for dismissal. 4. This was not a case where an innocent decision maker was manipulated into ordering a dismissal. The tribunal had considered the reasoning process of the chair of the disciplinary panel. 5. In general, when considering a claim of automatic unfair dismissal as a result of making protected disclosures, tribunals have only to investigate the thought processes of the dismissing officer.

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