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A major teaching trust has lost an appeal against an employment tribunal which had been highly critical of evidence given by its chief executive, in the unfair dismissal of a whistleblowing surgeon.
The High Court dismissed University Hospitals Birmingham Foundation Trust’s (UHB) bid to overturn an employment tribunal’s ruling that it had unfairly dismissed whistleblowing consultant Tristan Reuser.
UHB is now also set to face a further tribunal over whether it had unfairly dismissed Mr Reuser solely on the grounds of a “protected disclosure” he had made before the dismissal.
The original tribunal, in 2018, was heavily critical of Dr David Rosser, who was UHB’s medical director at the time and is now the trust’s chief executive, for the role he played in Mr Reuser’s dismissal.
It found that in providing evidence to the General Medical Council (GMC) and the tribunal, Dr Rosser and another manager made misleading claims to support the fairness of the dismissal.
During the 2018 tribunal it was alleged that Mr Reuser had been dismissed solely because of his whistleblowing. However, the tribunal did not find grounds for this, and dismissed his claim of automatic unfair dismissal.
In a cross-appeal, dealt with alongside UHB’s appeal, Mr Reuser challenged this ruling and Deputy Judge Naomi Ellenbogen has ruled the issue should be “remitted to a freshly constituted tribunal”.
Documents published by the court on Friday also reveal Dr Rosser and the trust’s former deputy medical director Clive Ryder “were facing investigation” following an anonymous referral to the GMC.
However, it is not clear whether any investigation was pursued by the GMC. Neither Dr Rosser nor Dr Ryder have restrictions on their licence.
University Hospitals of Birmingham FT and the General Medical Council were approached for comment.
Details from 2018 employment tribunal
Mr Reuser brought an employment tribunal against UHB after being dismissed in 2017 for “wilful disregard for clinical standards and safe medical practice”, following two incidents.
Dr Rosser was the trust’s medical director at the time and chaired the dismissal panel.
In the first incident Mr Reuser had 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.
Mr Reuser told the 2018 tribunal that the patient was at significant risk of vision loss without the operation. This was later supported by an independent clinical expert. A subsequent GMC hearing took no action against Mr Reuser.
The second incident cited in his dismissal was Mr Reuser leaving his surgical list in the hands of a senior trainee to attend a meeting without permission.
However, emails showed Mr Reuser’s meeting attendance had been approved and Dr Rosser knew this ahead of the surgeon’s dismissal.
While under investigation but before his dismissal Mr Reuser made a “protected disclosure” to the then division director, raising concerns over a lack of nurse support for surgery.
Dr Rosser told the 2018 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 tribunal said: “Dr Rosser was not sufficiently independent. There is a strong suspicion of bias given his approval of the exclusion on grounds he ought to have known were false. This appears further confirmed by the omissions and unjustifiably strong language of the GMC referral.”
It also found: ”There was significant evidence that suggested that Dr Rosser, and others in senior management, were predisposed against the claimant prior to his disclosure for reasons that remain unclear.”