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“Fanciful” doctor’s victory in unfair dismissal claim

Sep 7, 2022

The handling of whistleblowing complaints by employers has been highlighted in the recent case of Mr Kumar and the Care Quality Commission (“CQC”). Orthopaedic surgeon, Mr Shyam Kumar, has won his unfair dismissal claim against the CQC as a consequence of the concerns he raised over their failure and inability to review and regulate concerns over patient safety. During Mr Kumar’s employment with the CQC, such concerns were deemed “fanciful” and the Employment Tribunal found they ultimately lead to his dismissal in 2019.

Background

Mr Kumar has been employed as a consultant upper-limb specialist at the Royal Lancaster Infirmary since 2011. Alongside this, he is a member of the AAC of the Royal College of Surgeons and had regular involvement in the recruitment of consultants into various NHS Trusts in England and Wales. Mr Kumar is said to have an exemplary record. Alongside his own work with the Morecambe Bay Trust, he also was employed between 2015 and 2019 as a part time ‘specialist advisor’ for the CQC and was responsible for overseeing hospital inspections and patient safety.

During his time with the CQC, Mr Kumar wrote on several occasions to senior colleagues raising a series of concerns about patient safety, inadequate hospital inspections and allegations of staff bullying. Mr Kumar raised his first concern in 2015, summarising that he had worries of the ‘CQC’s failure to act appropriately to address whistle-blowers’ concerns’ and that he felt that the CQC were undermining and obstructing him for carrying out his duties to report such failures.

During a hospital inspection, Mr Kumar stated that a group of whistleblowing doctors were prevented from raising their concerns on their patients safety. Mr Kumar raised his own concerns with the CQC about this particular Trust.

Mr Kumar continued to raise concerns of this nature during his employment with the CQC, providing further examples of malpractice, but no further steps were taken. It is noted that Mr Kumar even reported concerns about a surgeon operating in his own trust, Morecambe Bay, who was said to have carried out operations which were of an unacceptable quality.

In December 2018, the CQC terminated Mr Kumar’s contract as it was alleged he was ‘using his position to manipulate CQC colleagues’ and his conduct was ‘inappropriate’. The Tribunal later found, however, that it was the safety issues raised by Mr Kumar that had a material impact in his dismissal. It was even found that there were no negative Performance Reports raised against Mr Kumar during his employment with the CQC and ultimately the allegations put forward by the CQC were quashed.

The CQC accepted that the evidence provided by Mr Kumar would have caused damage to his reputation and as a consequence, injury to his feelings. The Manchester Employment Tribunal awarded Mr Kumar £23,000 in compensation.

The British Medical Association have remarked that “Doctors must be able to speak out on patient safety without fear”. They have called for an “open, learning culture” across the NHS, to ensure that medical professionals are supported in bringing to light patient safety concerns.

Summary

This case magnifies just how important it is for employers to take complaints and concerns raised by their employees seriously and to ensure that these are investigated and evidenced appropriately. Protected disclosure or whistleblowing complaints must be dealt with proactively and properly by employers, particularly those in a regulatory environment as we have here. Employers should not turn a blind eye to complaints or avoid dealing with them. Similarly, employees must not be treated detrimentally or dismissed as a consequence of having made formal protected disclosures or whistleblowing complaints.

Similarly to the CQC, it is important for employers to remain proactive in ensuring that their internal practices and policies are reviewed on a regular basis. By implementing these changes, employees will in turn feel more confident about raising concerns that they may be experiencing within the workplace which will ensure that issues are dealt with professionally.

Employees have the right to a safe space at work to voice their thoughts without being scrutinised and ignored, and the Employment Tribunal have issued a clear message to employers that they will be penalised where found to have dismissed such claims.

Unfortunately for Mr Kumar, the actions of the CQC has caused damage to his reputation, both within the medical profession and wider community. It is a stark reminder for employers to review their policies to minimise the risk of any unwarranted unfair dismissal claims and to protect whistleblowing rights for their employees.

For further information or to discuss the issues raised by this update, please contact our Employment Group on 01276 854663 or employment@herrington-carmichael.com.

This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.

Olivia Larkin

Olivia Larkin

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