• NHS Professionals and Southern Health FT’s treatment of employee “appalling”, judge finds
  • Care support worker left in suspension “limbo” for nearly three years after whistleblowing and inappropriate relationship claims
  • But EAT dismissed worker’s appeal for racial discrimination and unfair dismissal for whistleblowing

An employment judge has branded NHS Professionals and a trust “appalling” for their failure to conclude a disciplinary case for nearly three years.

Tribunal papers, published last month, revealed a care support worker had been left on suspension since 2016 following a dispute with the trust he had been placed with.

The Employment Appeal Tribunal said Ephrem Uwalaka had received “shoddy” treatment from NHS Professionals and Southern Health Foundation Trust, where he had been working. 

However, the EAT dismissed the worker’s appeal and, although the judgment was critical of NHS Professionals, it was not a party in the appeal. It had been a respondent to the original tribunal but the EAT judgment stated “the matter had been settled on terms of which the tribunal was unaware”.

The judgment said Mr Uwalaka had been “suspended following an allegation of misconduct, and thereafter was placed in a state of limbo because NHS Professionals failed to carry out any proper investigation into the allegation.

“He is clearly an intelligent man who feels, with good cause, that he has suffered an injustice in the way in which he was treated by the [trust] and NHSP. This has resulted in his being unable to work for anyone without disclosing the fact of an ongoing suspension.”

The NHS-owned agency staff provider, which supplies 100,000 personnel a year to 55 different trusts, said it had updated its processes in light of the judgment.

An NHS Professionals spokeswoman said: “Incidences such as these provide opportunities for lessons learnt. Following this investigation, we have updated our escalation policy on complaints and have improved the training of our investigators.

“We aim to resolve cases and issues as quickly as possible but are often dependent on the flow of information between trusts, individuals and ourselves. We will continue to drive improve our service around complaints when and where we can.”

She added: “NHS Professionals is committed to providing safe and reliable bank members to support the effective delivery of patient care at our client trusts, but also improve the experience of bank members through ongoing communication. To support this, we have a robust governance and assurance framework in place.”

The case was heard by the Employment Appeal Tribunal after Mr Uwulaka appealed a September 2017 employment tribunal decision.

Evidence from the initial tribunal showed he had made a whistleblowing complaint about understaffing at the trust to the Care Quality Commission in early 2016. He was suspended in March 2016 following an allegation that he was having an inappropriate relationship with a patient.

He was not told of the nature of the allegation for nearly two months. The original tribunal said: “NHSP’s emails suggest this was because [Southern] did not provide the details but we did not ascertain where responsibility for this delay lay.

“Whoever was responsible, it is clearly unacceptable at any time, but certainly given the seriousness of the allegations, for an employee to have to wait so long to learn of the allegations against them.”

Mr Uwalaka brought claims to the tribunal of racial discrimination and unfair dismissal on the basis of whistleblowing. But the tribunal found no evidence of either claim and found in favour of the trust. 

Upholding the original decision, EAT judge Martyn Barklem said that, although Mr Uwulaka’s situation was “appalling”, he was unable to intervene.

NHS Professionals said Mr Uwulaka’s suspension had not been lifted since the EAT decision in December, because an investigation had upheld the allegation of an inappropriate relationship against him.

Southern Health FT said in a statement that it would not comment as the case could be appealed.