Whistleblowing: Senior Medic Dismissed For Making Protected Disclosure

• Published date: 02 September 2022
• Subject Matter: Employment and HR, Employment Litigation/ Tribunals, Whistleblowing
• Law Firm: Weightmans
• Author: Suzanne Nulty and Chris Baker

It is important not to forget your organisation's duty of care to a whistleblower

The Employment Rights Act 1996 provides protection for workers reporting malpractices by their employers or third parties against detriment or dismissal.

In Macanovich v Portsmouth NHS Hospitals Trust an employment tribunal held that a senior medic had been unfairly dismissed as a direct result of raising concerns about an innovative procedure carried out at her hospital and for reporting colleagues to the GMC.

What happened?

The claimant, Dr Jasna Macanovich, was employed as a Consultant Nephrologist (kidney specialist) by Portsmouth NHS Hospitals Trust and had accrued over 20 year's NHS service.

She resigned from the hospital's renal transplant team in 2016, alleging that two serious clinical failings had occurred but were not reported by either of the surgeons involved. These allegations were raised publicly, at a meeting, which upset a number of colleagues. An investigation into this issue was carried out under the Trust's whistleblowing policy.

Dr Macanovich continued in employment in a different role, and subsequently raised further concerns about an innovative kidney dialysis technique, known as 'button-holing' being used at the hospital. She flagged to colleagues that the practice was 'considered inappropriate by the vast majority of experts in the field' and was not used in other renal units. She also raised questions about data around the efficacy of the procedure, and whether the risks involved had been adequately communicated to patients.

Following a number of confrontational meetings with colleagues, Dr Macanovich took the further step of reporting her concerns to the Care Quality Commission (CQC) which, after investigation, was content for the 'button-holing' practice to continue.

She went on to report several senior colleagues to the General Medical Council (GMC) alleging that they had acted dishonestly during the CQC enquiry. This led to a number of internal complaints about her behaviour, prompting an unsuccessful attempt at mediation which left a number of parties, including the external mediator, in tears.
The Trust subsequently dismissed Dr Macanovich in 2018 for 'serious misconduct' on the basis that she had become 'unmanageable' and that there had been an irretrievable breakdown in working relationships.

The decision

The employment tribunal found that Dr Macanovich was unfairly dismissed because she had raised a series of protected disclosures by...