27th May, 2022
Successful claim for ‘Whistleblowing’ Doctor
In the case of Dr S Mann v Dr F Mulder and Mr R Laver t/a Helios Medical Centre, Dr Sonia Mann has been awarded over £47,000 following an Employment Tribunal’s finding that she had been constructively unfairly dismissed and subjected to a detriment following protected disclosures, including her concerns for patient safety at the GP surgery where she worked.
The Tribunal held that Dr Mann had been subjected to a detriment contrary to section 47B of the Employment Rights Act 1996 (“ERA 1996”) on the ground that she had made a protected disclosure; that she had been constructively and unfairly dismissed; and that her dismissal was automatically unfair. She was also entitled to notice pay.
Dr Mann raised concerns that the Respondent had failed to provide a safe system of work, including specific concerns regarding patient safety and the level of GP cover when a partner at the surgery, Dr Frank Mulder, had gone on holiday and left the surgery without a triage GP. She twice emailed Dr Mulder and the other partner of the surgery, Dr Laver, expressing her view that the absence of a triage GP posed a “high risk of harm to patients”. She also sent WhatsApp messages and suggested that Dr Mulder should return from holiday. Dr Mann subsequently raised a grievance, along with concerns about excessive levels of stress and responsibility placed upon her by the Respondent. This culminated in her receiving a fit note for work-related stress.
In seeking to demonstrate that she reasonably believed her disclosures were made in the public interest, which was disputed by the Respondent, Dr Mann argued that the safety of patients under the care of the Respondent was at risk; the health and safety of others in the employment of the Respondent was placed at risk; and the disclosures included concerns relating to doctors (specifically Dr Mann’s working hours).
The detriment Dr Mann claimed she was subjected to as a result of the protected disclosure included unilateral cancellation of her locum sessions by Dr Mulder without consultation or explanation; unprofessional and disrespectful conduct towards her when she raised the issue of the cancellation of the locum shifts; failure to deal promptly or at all with her grievance. The unilateral cancellation of her locum sessions was said to be ‘the last straw’, at which point Dr Mann resigned.
The Tribunal concluded that there were a series of cumulative repudiatory breaches of the implied term of trust and confidence, including the failure to provide a safe system of work, and that Dr Mann resigned as a result of those breaches. The Tribunal also found that Dr Mann had made a number of protected disclosures and that the pleaded detriments she was subjected to were as a result of that. Following the findings in her favour, Dr Mann has received an award for injury to feelings of £21,000 (in the middle Vento band) and aggravated damages of £10,500, as well as lost earnings. It will be decided at a further hearing whether she will also receive an award for future lost earnings and pension losses.
This case is a reminder of the Tribunal’s power to award damages for injury to feelings where there is a successful claim for detriment as a result of a protected disclosure, and the increased costs for employers that brings with the top end of the highest Vento guideline band currently sitting at £49,300 (as of 6 April 2022).
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