The recent judgment in the case of Neikrash v South London Healthcare NHS Trust, highlights the need for NHS employers to consider very closely any decision to suspend (exclude in the case of doctors and dentists) NHS employees. Case law has established for some time that suspension is a measure of last resort and alternatives eg restriction of practice, need to be considered first. The decision to suspend/exclude is governed also by the employer's disciplinary policies, and needs to be exercised very carefully, particularly when a worker alleges s/he has made a whistleblowing allegation.
The claimant in this recent case was a consultant urologist employed by the trust. From May 2007, the claimant raised a large number of concerns with management about a variety of issues, which concerned patient care, closures of clinics, bullying and harassment and poor supervision. It was felt that the claimant was damaging working relationships and the reputation of the urology department, and as a consequence the claimant was excluded and an investigation into his behaviour was undertaken. Subsequently his exclusion was lifted but his day-to-day activities were restricted.
The claimant raised a grievance about his exclusion. The trust called a meeting at which his grievance was dismissed. Further correspondence and meetings took place but he filed a whistleblowing claim at the Employment Tribunal where he alleged he had suffered detriments as a result of making whistleblowing disclosures. He alleged that his detriments related to his job plan, delay in allowing him to operate at Guy’s and St Thomas’, his exclusion, including detriments arising from the exclusion (loss of private practice income, loss of reputation, injury to feelings and health), the making of defamatory allegations by management and in relation to prospective on-call payments.
The tribunal found that the claimant had been subjected to a detriment on the grounds of protected disclosures made by him at the time, but only in relation to his exclusion. In all other respects they found that no detriment had been suffered due to the claimant's protected disclosures.
This case illustrates the great cost involved when taking decisions which impact detrimentally upon workers who have made protected disclosures in circumstances where working relationships are breaking down. Employers must ensure that they fully explore alternative methods to suspension/exclusion in such situations.