A surgeon who accidentally set a patient on fire during an operation was unfairly dismissed, a tribunal has ruled, after a protracted series of hearings and appeals.
An employment tribunal found there were “major issues” with the investigation into Dr O Iwuchukwu, who worked as a consultant general surgeon with a special interest in breast surgery at City Hospitals Sunderland – part of South Tyneside and Sunderland NHS Foundation Trust – from 2006 until his dismissal in 2015.
The tribunal also said the trust’s failure to properly investigate a number of grievances amounted to race discrimination. As a result, the tribunal awarded Iwuchukwu more than £67,000 for both unfair dismissal and for discrimination and victimisation.
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On 13 August 2013, Iwuchukwu was operating on a patient when he was mistakenly handed an alcohol-based antiseptic solution, instead of a non-flammable aqueous solution, which he applied to the patient. He then used a diathermy pen – which targets electrically induced heat to stop wounds from bleeding – which ignited the alcohol preparation, causing the patient to suffer a major burn.
The investigation report concluded on 26 November that “system failures” were the root cause of the accident and that while human error was a “contributory factor”, the trust’s processes and practices should have been effective in preventing the incident from taking place.
However, the tribunal said that several complaints about the surgeon’s capability were raised, culminating in a capability panel hearing in March 2015, after which Iwuchuku’s employment was terminated.
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Employment judge Garnon was impressed by the trust’s attempt at ensuring a fair hearing, but had “major problems” with how it was conducted, including how the investigation into the initial incident threw into doubt the claimant’s probity by including other complaints made against him by colleagues over the years.
“[The investigation report] does not say it was the claimant’s fault but the implication is (a) it was and (b) he had lied about it,” Garnon said. “The overall effect is that matters that were either unproven or actually disproved but included in the material sent to the panel created the real risk they would form a preconception the claimant was a liar and/or an arrogant man who dominated his subordinates.”
Garnon therefore ruled that the dismissal had been unfair because of procedural failings. However, a 50 per cent reduction was made to the basic award because, although it is the responsibility of the employer to follow a fair procedure, the claimant was “equally responsible for the panel being inundated with information they did not need and which touched on matters that were potentially prejudicial”.
The tribunal also ruled that Iwuchukwu had faced race discrimination and victimisation during his time at the hospital, including one incident where a colleague told him: “We’re not operating out of a hut in the Congo,” and the failure of the trust to properly investigate grievances rased by Iwuchukwu in May and October 2014.
The overall reward of £67,722 was made up of £29,986 for unfair dismissal, and £37,736 for discrimination and victimisation.
Andrew Willis, head of legal at Croner, said that even though the case was extremely fact specific, it “sends a clear message regarding the fairness of disciplinary and capability procedures and how only facts that are relevant to a case should be taken into account”.
“Allowing unrelated events that took place some time ago to influence decisions, or even the race and background of the employee in question, can result in successful unfair dismissal claims,” he said.
A spokesperson for South Tyneside and Sunderland NHS Foundation Trust said: “Mr Iwuchukwu worked as the sole consultant in breast surgery in 2013, when concerns around his performance first came to light. These concerns were fully investigated and subsequently confirmed by independent experts appointed by the Royal College of Surgeons.
“The trust successfully defended many of Mr Iwuchukwu’s claims at a hearing in 2016 and is disappointed with the outcome of the tribunal. However, we respect the findings and are pleased that the tribunal concluded that the content of Mr Iwuchukwu’s grievances was in fact addressed as a result of other investigations.”