• North Tees and Hartlepool FT loses employment tribunal brought by senior district nurse
  • Nurse wanted to invoke whistleblowing protocol but was suspended for 18 months before being dismissed
  • Trust intends to appeal decision

A trust unfairly dismissed a senior nurse after she tried to invoke its formal whistleblowing policy, an employment tribunal has ruled.

North Tees and Hartlepool Foundation Trust had suspended Linda Fairhall for 18 months without a “meaningful or adequate” explanation prior to her dismissal, the judgment said.

The tribunal also criticised the trust’s “inadequate and unreasonable” investigation of the clinical care coordinator, who it said had given the NHS “38 years [of] unblemished service”.

The judgment, handed down at Teesside Justice Hearing Centre and published last week, added: “No reasonable employer, in all the circumstances of this case, would have conducted the investigation in this manner.”

The judgment said the tribunal believed the principal reason for her dismissal was because she had made protected disclosures. It upheld her claim that her dismissal was automatically unfair.

Numerous concerns

Ms Fairhall, who led a team of 50 district nurses in Hartlepool, reported on the trust’s risk register that a “change in policy” by the local authority had directly led to increased workloads for her staff.

The change meant staff had to monitor patients who had been prescribed medication “so as to ensure the correct medicines were being taken at the correct time”, the judgment said.

She reported numerous concerns to senior management between December 2015 and October 2016, amounting to 13 protected disclosures according to the tribunal, ranging from work-related stress, sickness, absenteeism and a need to retrain healthcare assistants.

A patient’s death triggered a meeting involving her and senior managers, which she said could have been prevented had her earlier concerns “been properly addressed”.

Ms Fairhall told care group director Julie Parks she wanted to initiate the formal whistleblowing policy on 21 October 2016, before going on annual leave a few days later. When she returned, she was told she had been suspended for 10 days.

An investigation was launched into her amid allegations surrounding “potential gross misconduct relating to concerns regarding your leadership and also concerns in relation to inappropriate and unprofessional behaviour including bullying and harassment”, the judgment said.

Her suspension was extended twice in November and December 2016, and lasted 18 months in total before Ms Fairhall was dismissed in April 2018.

Ms Fairhall’s appeal against the outcome of the initial investigation, which was not completed until April 2017, was rejected. A second investigation followed into her alleged failure in adhering to NTH’s financial instructions and charitable funds protocols, with her challenge against the outcome of that one also being thrown out.

‘Unjustified and unreasonable’

The judgment said: “The [trust’s] witnesses referred to little more than ‘themes’ or ‘perceptions’ by the staff, none of which contained a level of detail which would have enabled [Ms Fairhall] to respond… The tribunal found that no reasonable employer, in all circumstances of the case, would have conducted the investigation in this manner.”

The tribunal also criticised the trust for not giving a “meaningful or adequate” explanation of why the suspension lasted 18 months.

It said it was an “inordinate and unreasonable length of time for an employee of the claimant’s superiority and length of service to be suspended”.

The judgment added: “[NTH’s] decision to dismiss the claimant fell outside the range of reasonable responses open to an employer in all circumstances of the case.

“This was an employee of 38 years unblemished service who was suspended from her role in circumstances where that suspension was unjustified and unreasonable.

“[NTH] has failed to establish that [Ms Fairhall] committed any act of misconduct which could justify dismissal.”

Life left in chaos

Ms Fairhall told HSJ she has been left “utterly devastated by the whole process”, leaving her both “physically and emotionally drained”.

She added: “I have been utterly humiliated, my life has been left in chaos and my professional integrity has been called into question, leaving my reputation irreparably damaged.

“I am devastated that, after almost 40 years in a career I have been passionate about and working in an organisation that I have always been proud to be a part of, I am left in this situation.”

Jodie Hill, managing director and solicitor at Thrive Law firm, which represented Ms Fairhall, described the case as “unusual”, adding: “We are delighted that Linda was able to secure this victory as it will assist her in starting to move on from what has been a life-changing ordeal.”

NTH told HSJ it plans to appeal the tribunal’s decision. A date for the remedy hearing is still to be confirmed.