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Employment Law Case Update: Investigations and Whistleblowing Claims

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As an employer, there will be times when something, such as a complaint or a whistleblowing claim, is brought to your attention that will require investigation.

The case of Fairhall v North Tees and Hartlepool NHS Trust illustrates the importance of an employer properly investigating and dealing with an employee’s request to instigate the formal whistleblowing procedure and the issues that can arise from any subsequent dismissals.

Ms Fairhall had worked for the NHS for 38 years until she was dismissed in April 2018. She was a well regarded employee who had been commended for leadership skills and her quality of care.

The dismissal came after Ms Fairhall raised several concerns regarding her colleagues’ welfare and also the safety of patients under the employer’s care.

Across ten months Ms Fairhall reported 13 concerns relating to protected disclosures. These, the tribunal later found, had content which was sufficient and factual and proved that the health and safety of staff and patients was endangered.

Ms Fairhall raised a request to instigate the formal whistleblowing procedure on 21st October 2016, after which she went on annual leave until 31st October.

On returning she was suspended for ten days, which later amounted to 18 months, due to her employer wanting to investigate ‘allegations of potential gross misconduct’. These allegations related to bullying and harassment. After her 18 month suspension period, Ms Fairhall was dismissed by her employer in April 2018.

This alleged misconduct for which Ms Fairhall was dismissed, was described by the Employment Judge as inadequate and unreasonable due to the lack of explanation she received regarding the delay of the process.

North Tees and Hartlepool NHS Trust was criticised for leaving Ms Fairhall with little ability to respond to the accusations against her because they were unspecific.

Ms Fairhall’s dismissal was concluded by the tribunal to have been unfair and unreasonable due to the nature of the investigation and the length of suspension she received.

The tribunal found Ms Fairhall’s dismissal to have been automatically unfair due to the reason behind it being her protected disclosures against her employer.

The case illustrates the importance of a proper and professional investigation of complaints and a need to have an appropriate procedure in place for when employees request to commence a whistleblowing process. It is a good idea for employers to have suitable training in place for managers to deal with safeguarding concerns in the workplace.

If you have any questions regarding this article, or you would like guidance on how to conduct a thorough and compliant investigation, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

This was previously part of our weekly Employment Law Newsletter. If you would like to subscribe, please email us at events@warnergoodman.co.uk or just fill in our subscription form.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.