The Employment Tribunal’s Judgment is detrimental to all whistleblowers

I am a Specialty Doctor who raised a number of concerns and have since been made to suffer because of it.

Background 

I  am a Specialty Doctor specialising in Bariatric surgery. .

Between 2011 and 2016, I raised a number of protected disclosures to my employer. I believe that this resulted in me becoming deskilled.

Settled Claim and Aftermath

I submitted a Whistleblowing claim at the Employment Tribunal on 19 April 2017 (“the Settled Claim”).

A COT3 Agreement (“the Agreement”) was reached on 21 February 2018 whereby I agreed to withdraw the Settled Claim in return for me undertaking a reskilling process with the objective of returning to clinical practice once again.

The reskilling process then commenced, and I was being supervised by three surgeons, out of these only one was a fulltime Bariatric Consultant. During this process, I received excellent feedback. The success or failure of the reskilling program depended in a large part on the number of operations I had access to. In addition to the one full time bariatric consultant supporting my re skilling, there are three other full time Consultant Bariatric Surgeons in the Department who conducted the majority of the surgeries but refused to take part in my reskilling program which meant that I had limited access to the procedures. They featured in my protected disclosures and complaints I had made between 2011 – 2016.

At no point throughout the process were any performance issues raised. During this time, the trainers had even written to the Joint Committee on Intercollegiate examinations on my positive engagement and progress.

On 18 December 2020 following a final meeting with the Trust, I was informed that the reskilling process was not successful and that the Trust is now instigating a performance process against me. I was shocked that without any prior notice, discussion, or consultation, I was now being pursued for capability, particularly as at no stage during the reskilling process, was capability called into question by any of my trainers. In addition, the Training Lead of the reskilling program recommended that I should be allowed to practice with a mentor. However, neither this nor were any other options considered before instigating capability proceedings against me.

New Claim 

I brought a new claim in the Employment Tribunal on 25 May 2021 and 17 September 2021 on the basis that I was still being mistreated because of the protected disclosures that I had previously made, which were the subject of my Settled Claim.

I therefore set out in my new claim that I was continuing to suffer detrimental treatment.

Employment Tribunal Judgment

On 15 March 2022 a Preliminary Hearing (“PH”) took place at the London Central Employment Tribunal before Employment Judge Elgot. The PH was to determine the Trust’s application to strike out my claim on the basis the Tribunal did not have the jurisdiction to hear my claim in view of the fact that the protected disclosures I was relying on in my new claim, were the same ones as those that I had relied on in the Settled Claim.

In her judgment dated 19 May 2022, Employment Judge Elgot struck out my claim on the basis that the disclosures I was relying on were the same ones as those from the Settled Claim, and therefore, I was not permitted to rely on them as all matters in that claim, including the protected disclosures had been withdrawn and dismissed as part of the settlement.

Why I need your support? 

There are significant public policy considerations at play in my case. It needs to be made clear, I was not relying on the same detriments from the Settled Claim, I accept that those detriments would have been settled and I would not be permitted to resurrect them because of the settlement. I was simply relying on the same protected disclosures which I believe were the reason why the reskilling process did not result in a positive outcome as I was denied sufficient exposure to Bariatric procedures.

The consequences that flow from the Judgment in my case means that an employer could achieve a settlement with an employee in a whistle blowing or a victimisation claim, which would result in the dismissal of the proceedings, only for the employer to then subject the employee to untold ongoing detriments (including dismissal) because of the disclosures previously made as soon as confirmation is provided that the proceedings have been dismissed. This judgment gives employers a free rein to subject employees to continuing  detrimental treatment because of the protected disclosures (in a whistleblowing claim) or protected acts (in a victimisation claim) without any recourse simply because an earlier claim was settled.

My Solicitor, Zillur Rahman of Rahman Lowe Solicitor has said:

“Whistleblowing in the health sector is vital to us all (patients, staff and managers) to identify concerns about unsafe practices, cross-country competencies of doctors and the professional conduct, honesty and integrity of senior doctors which of course all revolve around patient safety. Doctors who whistleblow about these or any other matter should be considered as assets to us all and not mistreated”.

I am seeking to launch an appeal to the Employment Appeal Tribunal against the decision to strike out my claim. Please help me redress this injustice.

Many Thanks.