• Employment tribunal criticises Shelford group CEO in unfair dismissal case
  • Trust plans to appeal ruling
  • Comes after surgeon dismissed for using non-clinical staff during an urgent operation
  • Trust senior managers showed “apparent bias and/or incompetence”, tribunal finds

A Shelford Group chief executive was “deliberately misleading” or failed to show sufficient “care and attention” in the dismissal of a whistleblowing surgeon, an employment tribunal has said.

In a decision published on Wednesday, the tribunal found Heart of England Foundation Trust, now part of University Hospitals Birmingham Foundation Trust, unfairly dismissed an ophthalmic consultant, Mr Tristan Reuser, in June last year.

In the decision, the tribunal singled out Dave Rosser, then the trust’s medical director, who has since been promoted to chief executive, for criticism as the “driving force” behind the dismissal.

The tribunal found Dr Rosser had an “apparent bias” that had led to a “sham exclusion” and the eventual unfair dismissal of Mr Reuser.

Some of Dr Rosser’s evidence relating to the surgeon’s conduct was either “deliberately misleading” or “had failed to give the matter anything like the level of care and attention required”.

More broadly, the tribunal said the trust handled the case with “apparent bias and/or incompetence at a senior management level”.

While the ruling also said the surgeon was not without fault, with evidence of a “significant and serious” failing that put patient safety at risk, it said this fell short of gross misconduct.

The trust said it planned to appeal the ruling.

Mr Reuser was dismissed for “wilful disregard for clinical standards and safe medical practice”. A subsequent General Medical Council hearing took no further action against him. Mr Reuser told the tribunal he believed a whistleblowing letter was the real reason for his dismissal, a theory the tribunal did not support.

This dismissal came after Mr Reuser allowed a manager, with no clinical experience, to hold back the skin on a patient’s eyelid while he performed urgent surgery after a nurse refused to help.

He told the tribunal the patient was at significant risk of vision loss without the operation, a position later supported by an independent clinical expert.

While the operation was a success, the trust said the manager’s involvement was “totally inappropriate and, specifically, that they increased avoidable risk”.

A second incident was also cited in his dismissal, in which the trust said Mr Reuser left his list in the hands of a senior trainee to attend a meeting without permission.

However, the tribunal found that in providing evidence to the GMC and the tribunal, Dr Rosser and other manager made misleading claims to support the fairness of the dismissal.

Emails showed Mr Reuser’s meeting attendance had been approved and Dr Rosser knew this ahead of the surgeon’s dismissal, contradicting the medical director’s own evidence.

“When this was put to Dr Rosser he could offer no adequate explanation,” the tribunal said.

While he was under investigation but before his dismissal, Mr Reuser and another surgeon wrote a letter to their divisional director raising alarm about lack of nursing support for surgery.

Dr Rosser told the tribunal Mr Reuser was not a whistleblower, despite evidence that he was aware of this letter and the trust accepted it was a public interest disclosure.

The medical director’s explanation for this “oversight” was “inconsistent and unconvincing”, the tribunal said.

The tribunal said that Dr Rosser’s characterisation of Mr Reuser as “exceptionally arrogant” and lacking insight had “some basis” but also “confirm Dr Rosser’s apparent bias against the claimant”.

This made it all the more important that Dr Rosser removed himself from the decision to dismiss. Instead, he chaired the panel that made the decision and did not seek independent medical input, contrary to NHS disciplinary guidelines, the tribunal found.

The parties have been given 28 days to agree on a remedy.