Whistleblowing nurse branded a ‘nuisance’ awarded £127,000 for unfair dismissal

Tribunal rules healthcare worker who was dismissed for gross misconduct was covered by protected disclosure legislation 

A whistleblower who was unfairly dismissed after raising concerns over the treatment of NHS staff has been awarded more than £127,000 by an employment tribunal.

Andrew Smith was dismissed in 2015 by Mid Essex Hospital Services NHS Trust after the Trust accused him of making “vexatious or malicious allegations”, showing disruptive behaviour and emailing sensitive information to his personal account, which all allegedly amounted to gross misconduct.

But a London employment tribunal (ET) ruled Smith was dismissed because he made multiple protected disclosures in 2013 and 2014 about the treatment of staff, and was therefore covered by whistleblowing legislation.

The ET said management had perceived Smith, who had an “unblemished” 28-year career as a nurse with the Trust, as a “nuisance” as he was a campaigner for employment rights and was an “effective” trade union representative for the Royal College of Nursing. The tribunal also found his involvement in trade union activities had been an “additional source of irritation” for his managers. 

The tribunal heard that on 16 December 2013, and again on 22 April 2014, Smith, who worked at Broomfield Hospital in Chelmsford (pictured), made several protected disclosures claiming staff were being bullied and harassed by managers and not being provided with adequate rest under the Working Time Regulations, as well as raising concerns over staff recruitment and retention payments, plus medication and patient care issues.

Shortly after his first protected disclosures and a period off work because of ill-health, Smith received an email on 17 February 2014 stating he was required to meet with the Trust’s head of nursing, Ms Foster, and an HR representative, Ms Rogers.

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The tribunal documents did not say what was discussed, but noted that, after this meeting, Smith heard from colleagues that they thought there was a “witch hunt” against him, and that the operating department practitioner, Mr Watson, was gathering statements about him.

In July 2014, the trust began disciplinary proceedings for gross misconduct, claiming Smith had made “vexatious or malicious allegations” against the Trust; displayed “disruptive behaviour” at a unit meeting on 7 July 2014; and had continued to send confidential sensitive emails to his personal email address after being told to stop doing so.

Smith was suspended from work and, after a subsequent investigation, was dismissed on 7 July 2015. A subsequent appeal was rejected. 

An ET in 2017 found Smith had been unfairly dismissed and subjected to detriment after making protected disclosures.

But an appeal by the Trust taken to the Employment Appeal Tribunal found that the first ET had failed to rule out the possibility that the primary reason for Smith’s dismissal was that his repeated complaints made him a general nuisance to his managers, and not solely because they were protected disclosures. 

The case was then remitted at an ET in July 2018 for reconsideration, where employment judge Warren found the Trust’s dismissal and subsequent appeal officers were aware of Smith’s protected disclosures.

Warren said: “The dismissal and appeal officers were very much aware of the protected disclosures and what a nuisance those disclosures had been, which is not to say the reason was the nuisance factor, it means as a whistleblower, he was a nuisance, and so they dismissed him because he was a whistleblower, because of the protected disclosures.”

The ET awarded Smith £127,390 in compensation including a basic award of £10,604; a compensatory award of £82,857; £22,000 for injury to feelings; and £11,929 for loss of pension.

Paul Holcroft, associate director at Croner, said that although it can be difficult for employees to meet the legal requirements for complaints to be considered a protected disclosure, it was important that employers not make any “hasty” decisions when faced with a potential whistleblower.

“If an employee makes such a disclosure, it will not matter how much of a 'nuisance' the employer believes them to be; they will still be protected by the law from suffering detriment or dismissal as a result of the disclosure,” Holcroft said. “As seen here, attempting to silence an employee in this situation could result in them being awarded significant compensation.”

A spokesperson for the Trust said: “Following Mr Smith's allegations, an independent enquiry conducted by an external company looked at the concerns raised and found that the Trust had acted appropriately and correctly on all of the matters raised,” adding that it will “reflect upon the findings” of the employment tribunal.

Smith could not be reached for comment.