Automatic Unfair Dismissal - A Reminder for Employers

A Case of Unfair Dismissal

In the case of University Hospital North Tees and Hartlepool NHS Foundation Trust v Fairhall, Mrs Fairhall had worked for the Trust for 38 years and in 2015 had been commended for her care and leadership qualities following a Care Quality Commission (CQC) visit and inspection. She had operational leadership and management of the district nursing team, which included approximately 50 employees, and her responsibilities included risk management and identifying safeguarding concerns.

Around the time of the CQC inspection, the local authority implemented a new policy which required the Trust to monitor medicines prescribed to patients. Mrs Fairhall claimed the policy change increased her staff's workload and stress-related absences, and also began to impact on the quality of care being provided to patients. Mrs Fairhall made a number of protected disclosures to her managers, expressing concerns that her team were under considerable pressure and lacked resources. After a patient died, she also informed them that she intended to invoke the Trust's formal whistleblowing policy. Mrs Fairhall was then suspended following allegations of gross misconduct, subjected to disciplinary investigation (during which she raised a grievance that was not upheld), dismissed and her appeal against dismissal rejected.

Mrs Fairhall brought claims for automatic unfair dismissal, detriments and wrongful dismissal. The Tribunal concluded that all of the claimant's disclosures were protected. It also rejected the dismissing officer's evidence on the reason for dismissal and found that Mrs Fairhall had been unfairly and wrongfully dismissed for the reason, or principal reason, that she had made protected disclosures.

It further held that the Trust had subjected her to individual detriments prior to the dismissal, including the suspension and various failures in the way the Trust's disciplinary process was conducted. The tribunal found that there had been no reasonable investigation and there was no evidence that could have led a reasonable employer to dismiss Mrs Fairhall for any reason related to her conduct.

Appeal to the Employment Appeal Tribunal

The Trust appealed the tribunal's decision on the basis that it had erred in its analysis of the dismissal.

The Employment Appeal Tribunal (EAT) distinguished this case from Royal Mail Ltd v Jhuti where it was held that the reason of those who had manipulated an innocent decision maker (unaware of the claimant's protected disclosures) into dismissing the claimant could be attributed to the employer.

Although the tribunal had reached its decision before the Supreme Court's decision in Jhuti, the EAT noted that Jhuti-type cases will be quite rare, and generally, in searching for the reason for a dismissal in these cases, the courts need look no further than the reasons given by the appointed decision maker.

The EAT held that the tribunal had not erred in finding that the Trust had dismissed Mrs Fairhall because she had made protected disclosures. It held that the tribunal had fully appreciated that it had to determine the disciplinary panel's reason for dismissal and that it was entitled to assume that the reasoning of the Chair was the result of the panel's deliberation, and that her evidence reflected the reasoning process of the whole panel.

The EAT held, however, that the tribunal had failed to sufficiently analyse who the relevant decision makers were for each of the detriments Mrs Fairhall was subjected to and why it had concluded that the detriments were done on the grounds of Mrs Fairhall having made protected disclosures. The tribunal's reasoning on these points were too brief and as such these matters were remitted to the same tribunal for further consideration.

Best Practice for Employers

Employees who make a protected disclosure will be protected from dismissal or detriment that occurs as a result of making that disclosure. It is therefore important that any investigation or subsequent process which may follow an employee's protected disclosure is conducted fairly and in accordance the relevant policies.  

This case is a cautionary tale for employers faced with an employee's protected disclosure(s). In this case, the tribunal were highly critical of the Trust's investigation. In particular, they noted that no explanation was given for the unreasonable delay in interviewing relevant witnesses. No explanation was given as to the remit of the investigation or instructions given to the investigating officer. The allegations of misconduct for which the Trust claimed to have dismissed Mrs Fairhall were never specifically put to her, so that she was never given a fair opportunity to prepare her case or respond to them.

If you need further advice on whistleblowing-related claims, please contact Sharmin Chowdhury in our Employment Law team on 01923 919 373, or complete the form below.