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Legal case

It is important not to forget your organisation’s duty of care to a whistleblower

The Employment Rights Act 1996 provides protection for workers reporting malpractices by their employers or third parties against detriment or dismissal.

In Macanovich v Portsmouth NHS Hospitals Trust an employment tribunal held that a senior medic had been unfairly dismissed as a direct result of raising concerns about an innovative procedure carried out at her hospital and for reporting colleagues to the GMC.

What happened?

The claimant, Dr Jasna Macanovich, was employed as a Consultant Nephrologist (kidney specialist) by Portsmouth NHS Hospitals Trust and had accrued over 20 year’s NHS service.

She resigned from the hospital’s renal transplant team in 2016, alleging that two serious clinical failings had occurred but were not reported by either of the surgeons involved. These allegations were raised publicly, at a meeting, which upset a number of colleagues. An investigation into this issue was carried out under the Trust’s whistleblowing policy.

Dr Macanovich continued in employment in a different role, and subsequently raised further concerns about an innovative kidney dialysis technique, known as ‘button-holing’ being used at the hospital. She flagged to colleagues that the practice was ‘considered inappropriate by the vast majority of experts in the field’ and was not used in other renal units. She also raised questions about data around the efficacy of the procedure, and whether the risks involved had been adequately communicated to patients.

Following a number of confrontational meetings with colleagues, Dr Macanovich took the further step of reporting her concerns to the Care Quality Commission (CQC) which, after investigation, was content for the ‘button-holing’ practice to continue.

She went on to report several senior colleagues to the General Medical Council (GMC) alleging that they had acted dishonestly during the CQC enquiry. This led to a number of internal complaints about her behaviour, prompting an unsuccessful attempt at mediation which left a number of parties, including the external mediator, in tears.
The Trust subsequently dismissed Dr Macanovich in 2018 for ‘serious misconduct’ on the basis that she had become ‘unmanageable’ and that there had been an irretrievable breakdown in working relationships.

The decision

The employment tribunal found that Dr Macanovich was unfairly dismissed because she had raised a series of protected disclosures by raising concerns to senior colleagues and subsequently to the CQC and GMC. The panel noted that her concerns were shared by a number of others and that even those who supported the button-holing procedure accepted that there was a lack of evidence about its effects.

Acknowledging that she was often a ‘difficult colleague’, the employment tribunal rejected the Trust’s argument that Dr Macanovich had not been dismissed because of the allegations she had made but ‘for the manner in which she did so’. The employment tribunal found that this distinction was artificial and was not apparent from her dismissal letter, which expressly referred to the fact that she had reported colleagues to the GMC. The panel also found that she had been unfairly excluded from meetings of senior staff and had been pressurised inappropriately to withdraw her GMC complaint.

What does this mean for me?

Although the case is a decision at first instance and a future employment tribunal does not have to follow it , the case serves as a reminder that concerns relating to patient safety will almost certainly be qualifying disclosures (and potentially protected disclosures) as the concerns relate to health and safety.

As shown in the facts of this case, where there is a deeply held difference of opinion on clinical practice between senior clinical staff and/or members of a clinical body, it can be extremely difficult to manage working relationships and any subsequent internal processes. Whilst very challenging , the aim must be to prevent staff and leaders from becoming entrenched in a combative scenario, which might give rise to a risk of whistleblowing detriment and unfair dismissal claims.

The employment tribunal noted that the breakdown in relationships arose from the controversy around the button-holing procedure and that “all lost sight of the important principle that this was a protected disclosure”. It issued a cautionary reminder that “it is no answer to a claim of whistleblowing to say that feelings ran so high that relationships broke down completely, and so the whistleblower had to be dismissed”.

It is therefore important not to forget your organisation’s duty of care to a whistleblower, even where their disclosures cause disruption or upset. Here, the employment tribunal found that the Trust had failed to follow its own policies around dignity at work and had neglected to provide Dr Macanovich with appropriate support.

The dismissal itself was also handled poorly, with Dr Macanovich being given the opportunity to resign at her disciplinary hearing, suggesting that dismissal was a foregone conclusion. It is important, whatever the circumstances, that an employer can demonstrate that an independent investigation has been carried out, and a reasoned decision reached based on all the facts of the case.

As each case will be entirely fact specific, it is important to take advice at an early stage. Please do not hesitate to get in touch if you would like to talk through your options.