Former ‘Doctor of the Year’ Mr Duffy resigned from his post as a consultant with University Hospitals Morecambe Bay NHS Trust due to allegations that were brought against him for racism. Mr Duffy reported fellow colleagues who were of differing ethnicities for various issues and was subsequently reported on four separate occasions to the General Medical Council. Mr Duffy claims that he was subject to ‘malicious and untrue’ allegations and brought claims for constructive unfair dismissal.
Was Mr Duffy unfairly dismissed?
Mr Duffy started working as a consultant for University Hospitals Morecambe Bay NHS Trust (“the Trust”) in 2000. In 2005, Mr Duffy reported a fellow doctor who was of Indian descent for missing an operation on a patient with suspected gangrene because he was out playing golf. He also reported two other colleagues who were of Asian descent for their possible involvement in overtime fraud.
Following these reports, Mr Duffy claims that he was subjected to ‘malicious, toxic and utterly false’ allegations of racism over the period of a decade. In particular, four anonymous letters were sent to Mr Duffy’s regulator, the General Medical Council, between 2012 and 2014 reporting Mr Duffy for racism against his colleagues. When discussing the letters in the Employment Tribunal, the judge commented that, from the content of the letters, they appeared to have been written by someone in Mr Duffy’s department and, if true, the allegations would have called Mr Duffy’s fitness to practice into question.
The General Medical Council took no action against Mr Duffy as a result of the letters. Mr Duffy then transferred to Furness General Hospital (also controlled by the Trust) and was voted Doctor of the Year by his patients and colleagues in this role. However, Mr Duffy resigned soon after in 2016 claiming that his annual salary had been cut by £36,000 due to further unproven allegations.
Mr Duffy brought claims for constructive unfair dismissal, unlawful deduction from wages and, as a whistleblower, having been subjected to detriments due to making protected disclosures.
The Employment Tribunal ruled that Mr Duffy had been constructively dismissed as a result of his pay reduction and awarded a total of £102,211 including compensation, a basic award for unfair dismissal and an amount for unlawful deduction of wages. Mr Duffy’s whistleblowing claims failed.
Complaints of malpractice can cause a serious headache for employers. They obviously have to be investigated to determine if there is any merit in the allegations and appropriate action taken in respect of the malpractice. Where it gets trickier is if there is either insufficient evidence pointing to malpractice or it appears the allegations have been made in bad faith.
If there is a lack of evidence, there is likely to be a relationship issue between the accuser and accused that will need patching up and/or managing. Depending upon the circumstances, this could have been made easier if the accuser had been kept anonymous. Note that this won’t ordinarily be possible where disciplinary procedures ensue with the accused.
It used to be the case that whistleblower protection only attached to workers making protected disclosures in good faith. The good faith element has subsequently been removed, meaning that as long as the worker reasonably believes they are making the disclosure in the public interest it matters not whether they are making it in bad faith. If an employer takes action against a ‘bad faith’ whistleblower as a knee-jerk reaction, the worker will have a strong claim for either automatic unfair dismissal or for having been subjected to a detriment.
It’s always worth taking a step back in the face of malpractice allegations and assessing the risks of taking action against the accuser.