Published: 30/09/2004, Volume II4, No. 5925 Page 34
Care is needed to avoid legal danger when someone blows the whistle, says David Lawson
Q One of our nurses has complained that a consultant did not wash his hands between examining two patients.She is demanding that we discipline the consultant, claiming that we would discipline other staff in the same situation.He complains that she is rude and that it is not for her to criticise how he treats his patients.
She is now worried that he will make her work life difficult. I do not know how to stop this argument from running out of control.
A Your primary problem is not employment law, it is how to restore relationships in your group.But employment law sets the framework.
First, you have to protect the nurse. By law, employees must be protected from victimisation if they give their employer information that shows certain failures.
Risks to health and safety are one of the protected disclosures that an employee can make. It does not matter whether the nurse is right or not - only that she acted in good faith and that she believed it. A claim for victimisation under the Public Interest Disclosure Act 1998 can be brought by the nurse.
Second, she would have a very strong case for unfair dismissal if she resigned and showed that after making the disclosure she was treated very badly and that the disclosure was the principal reason.
You would have been well advised to raise the complaint with the consultant first, without giving him the informant's name. In limited circumstances, tribunals will not even require names to be disclosed during formal disciplinary proceedings.Your whistleblowing policy should explain the options.
Pursue the hygiene matter with the consultant, who should be treated in the same way as other clinical staff.
The failure to treat similar staff in the same way when they are in similar situations can be the basis of discrimination complaints or could be used later to argue that it was unfair to discipline someone else who breached health and safety policy.
The trust will have an infection control policy.This should tie in to the disciplinary procedure setting out how staff will be dealt with for complaints of poor hygiene. It should allow you the flexibility to make a decision that reflects the consultant's work record and might not require formal steps to be taken.
David Lawson is a barrister specialising in employment law and the public sector.