Complaining or Whistleblowing?

An embryologist who complained about understaffing, old equipment and procedures at a fertility clinic was unfairly dismissed, an employment tribunal has found.

The employee was the most senior embryologist and considered the laboratory to be understaffed and not working optimally or efficiently. Some of the equipment was old and at times would not work. She raised concerns about IVF procedures and fertilisation success rates. Poor outcomes were becoming more common, which she said was stressful for her team and affected patients’ IVF prospects.

She asked her manager on two occasions in a 6-month period if he could review the process of scheduling patients for treatment so demand could be better managed. He did not make the suggested changes. Two years later she raised further concerns about staffing and workload to the company’s HR department.

When invited to a meeting with HR she presumed it would be about her concerns, but what followed were “pre-termination negotiations”. She was asked to leave the premises and to not come into work until further notice. Allegations against her included failure to follow reasonable management requests, and her alleged involvement in incidents that should have been reported to the regulator. The company launched an investigation into the reportable incidents and found they were examples of “gross incompetence”.

In the interim, the employee submitted a grievance which included issues about staffing and processes. She was dismissed from the clinic prior to these concerns being addressed.

The employment tribunal found that her concerns about staffing issues amounted to protected disclosures and had influenced the decision to dismiss her, but her complaints were not the sole or principal reason for her dismissal. The judgment suggested that she should not have been held entirely culpable for the matters that were the basis of the disciplinary allegations, as responsibility was shared by others.

Compensation is to be decided but this case serves as a useful reminder that some concerns may be more serious than others – and that all employee concerns should be managed appropriately.  Please contact us at enquiries@121hrsolutions.co.uk for support to manage grievances and complaints.

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