A mental health nurse with a track record of whistleblowing during his previous employment was unfairly dismissed by a care provider that feared he was seeking to highlight its failures in his new role, an employment tribunal (ET) has ruled.
The Bury St Edmunds tribunal found Noel Finn was forced out of his job with mental healthcare provider St Andrew’s Healthcare due to his previous part in exposing separate scandals at an immigration detention centre and on a government assessment programme. He had also appeared on a Channel 4 documentary where he went undercover.
In February 2017, he was employed as a staff nurse at a St Andrew’s facility in the East Midlands. He raised concerns with trainers during his week-long induction about fellow inductees cheating on e-learning modules by screenshotting the answers.
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On 2 March – his first day of work – Finn had also complained that some of the keys in the secure facility were faulty – something he had been told by a doctor and another member of staff was a common problem.
Finn had previously raised official concerns about facilities run by Northamptonshire Healthcare NHS Foundation Trust when he worked there between 2006 and 2009. Between October 2012 and April 2013, he blew the whistle about the care of detainees at the Serco-operated Yarl’s Wood immigration detention centre during his employment at the facility.
Finn then took part in undercover filming for Channel 4’s Dispatches documentary series in 2016 while working for Capita, which provided the assessment service for the government’s Personal Independence Payments (PIP) programme for individuals receiving disability benefits. He uncovered mistakes made when nurses completed PIP assessments too quickly, amid concerns they were incentivised to increase the number of claimants they assessed.
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The tribunal heard that on 1 March 2017, a Dispatches documentary about a St Andrews Healthcare site in Northampton was broadcasted, however Finn had nothing to do with the investigation and had not been approached about contributing.
On 16 March, Finn made a medication error and emailed a pharmacist colleague to disclose it. He also made reference to difficulties accessing patient records on the IT system and low staffing levels, as well as other issues.
The tribunal cited an email sent by senior clinical night co-ordinator Mr Harding to senior staff on 20 March, which raised Finn’s previous involvement with Dispatches. Two days later, he was suspended from his role.
Internal emails disclosed to the tribunal showed that Finn had aroused suspicion by “refusing to do medications and turning up to one of the wards in a suit and asking staff lots of questions”.
An investigation was conducted by Ms Conway, HR business partner, and flexible workforce manager Ms Atwell, which drew on the information provided in the email conversations and referred both to previous instances of whistleblowing and the undercover work with Dispatches.
It also noted that Finn had already raised issues about administering medication and that he had been “asking lots of questions”.
Conway and Atwell prepared a script in advance of discussing the investigation with him, which the judge said seemed to “suggest it had already been decided that Mr Finn should be suspended and they anticipated further disclosures from him”.
Emails between Conway and head of HR, Ms Hathaway, discussed how to phrase the letter of suspension and included the suggestion: “How about appears [sic] that he didn’t fully disclose history during the recruitment process which could constitute a breach of trust and confidence”.
Judge Martin Warren concluded: “We can see in the email chain, they are looking for justification to treat [the lack of full disclosure] as some kind of serious misconduct.”
The pair met with Finn on 22 March and suspended him. The tribunal heard he left the meeting in tears. The next day, Finn wrote to then-CEO Gil Baldwin complaining about being picked on for being a whistleblower.
He received a reply from the business’s director of nursing, which asked if he was planning to disclose any shortcomings. Finn sent another letter on 28 March asking to make a subject access request under the Data Protection Act, but received no response.
The tribunal said the lack of response “was deliberate… in the respondent’s [St Andrew’s] words, they were ‘keeping Mr Baldwin clean’.” Finn was told on 20 June that he would be summarily dismissed for gross misconduct.
The judgment found St Andrew’s Healthcare had refused to release unredacted versions of emails showing who had sent messages between “senior people in the organisations”.
Judge Warren called this decision “remarkable” given that “the identity of the recipients of those emails is highly significant, highly relevant.” He found Finn had been unfairly dismissed and a remedy hearing will be held at a later date.
Katie Palmer, associate director of advice at Peninsular, said that the employer’s fear of whistleblowing was a trigger for unfair dismissal and constituted an unlawful reason to terminate a contract.
“What appears to be more damning are the blatant attempts via email to ‘find’ another reason as a disguise for the real reason for dismissal,” said Palmer.
“Emails may be quickly sent and easily capable of deletion, but remain admissible as evidence in a tribunal claim.”
A spokeswoman for St Andrew’s Healthcare said the charity could not comment as a remedy hearing was due, but added it was “disappointed at the outcome of the tribunal”.
Mr Finn could not be reached for comment.