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'Hostile' private provider must pay nurse whistleblower's legal costs


A UK-wide private provider of nursing services must pay the legal costs of a whistleblowing nurse, according to a tribunal that described the firm as “unreasonably hostile”.

Nurse Elaine Fernandez was awarded more than £80,000 by an employment tribunal last year, after it ruled she was unfairly dismissed and suffered detriment for making protected whistleblowing disclosures.

In the latest development, tribunal judges awarded Ms Fernandez a full costs order, which means she will receive an estimated £30,000 to cover her legal costs. Tribunal judges criticised home care provider Allied Healthcare for its approach to the case.

“What was shocking was that a company like Allied Healthcare, whose business is caring, could treat anyone like they did me in my case”

Elaine Fernandez

The tribunal said Allied Healthcare had pursued a “defensive position” that was “unreasonably hostile”. It added: “This was a case in which [Allied Healthcare] chose to contest each and every aspect of the claimant’s case without, it would appear, any regard or scrutiny as to whether there was a reasonable basis.

“For no good or obvious reason, it appeared to the tribunal [that Allied Healthcare] had taken the view that the claimant was a troublemaker, and that view had informed and underpinned its entire response to the claim,” it stated.

Elaine Fernandez

Elaine Fernandez (left) pictured with members of her family

“In its defence of the claim, [Allied Healthcare] had adopted an unreasonably hostile position and raised unrealistic contentions that had no reasonable prospects of success,” it said. “As a consequence the claimant was put to considerable time and expense in pursuing her meritorious claim.”

Ms Fernandez raised concerns after Hywel Dda Health Board in Wales – which commissioned Allied Healthcare to provide nursing care for a disabled patient – decided to replace nurses with healthcare assistants.

She sent a confidential email to the health board expressing her concerns, which was forwarded to her managers at Allied hours later.

She was then repeatedly threatened with disciplinary action and eventually suspended and given no further work. At one stage, managers from Allied Healthcare tried unsuccessfully to encourage the patient’s husband to complain about her.

The tribunal originally concluded her “sole motive” for speaking out had been to “protect the safety and welfare” of her patient.

Speaking after the ruling, Ms Fernandez said: “What was shocking was that a company like Allied Healthcare, whose business is caring, could treat anyone like they did me in my case.”

Allied Healthcare has previously said it had introduced a new governance model and whistleblowing policies since the case, and it was confident this situation would not happen again.

It was unavailable to comment on the tribunal costs ruling.


Readers' comments (11)

  • michael stone

    GOOD !!!

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  • As a HCA I'm pleased with the ruling. we provide a healthcare supporting role and using us as cheap labour in place of clinicians is dangerous for the patients,us and senior medical staff we report too. Cost cutting like this needs to be stopped. In this case Ms. Fernandez probably saved her agency a fortune in future litigation, whistleblowers should be offered more protection, and consistent guidelines in place to prevent 'punishment' of the whistleblower

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  • Laha78

    A shining example of how nurses should whistleblow when patient and staff safety is at risk!

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  • An award of costs is as rare as hens teeth in the Tribunal, let alone an award of costs in a whistleblowing case. The excerpts from the judgement speak for themselves - this seems to have been appallingly bad behavior on the part of a private Co. (and the NHS Trust that commissioned them to provide care). Allied Healthcare are owned by SAGA - given SAGA's market demographic, I would be surprised if they didn't also consider this to be rather embarrassing around the time of their flotation. Surprised that this has not hit the mainstream press yet.

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  • Eileen Fegan

    I am very suprised that I am reading this in NT and not in the mainstream media. This case is appalling and the nurse involved has been through the most horrendous time. From personal experience, whistle blowing is an exercise that only puts the whistle blower at huge risk of reprimand, interrogation and backlash. This case has been a very long time coming and hopefully now, whistleblowing will be respected and the whistleblower protected in future.

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  • Well done Ms Fernandez for protecting your patient and withstanding the consequent, disgraceful onslaught by Allied Healthcare/SAGA.

    Also, well done to the Tribunal for acting in a fair manner. Let it be a warning to commercial concerns that acting as puppets for health service managers behaving inappropriately can have undesirable ramifications, not least of all in bad publicity.

    Hywel Dda Health Board should be aware that forwarding a confidential email without consent is a breach of data protection and possibly a matter for the Information Commissioner's Office.

    When I complained to a Clinical Commissioning Group, then later their regulatory body, the Parliamentary and Health Services Ombudsman, I also found myself in the situation where the healthcare provider was incited by the CCG to act in a malicious and unreasonable way towards me.

    The CCG also released my confidential data without my consent.

    The health service managers and social services managers are blatant in their disregard for the work the public purse pays them to do. Short termism that is cost inefficient as well as unsafe and harmful to service user and staff is not what they are paid to do or what the public expects from them. How far up the system does this abject stupidity go? The Government? Is this why the media fail to report the scale and seriousness of what is still happening to vulnerable people?

    When NHS and Social Services managers are in dereliction of duty, it should automatically be referred by all and sundry, including other regulatory bodies, to appropriate regulatory bodies.

    And, Nursing Times, what is happening to this Hywel Dda Health Board for their part in this? Please report.

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  • Good for that nurse!! Wish I could whistleblow some truths about neglectful practice at the nursing home where I work.CQC have sent in the in-reach team,the outreach team etc etc. but they are all missing the obvious that there is a dangerous level of understaffing and patients sometimes go hours without drinks.
    Despite CQC obvious interest, and them identifying stuff that needs to be improved, it's only a matter of time before there is a death from understaffing problems.They have had a few near misses recently!

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  • This is good news for whistle blowers, however the compensation to the nurse does not eradicate the problem with Managers /management who target staff for raising concern.l rather think the managers involved should be disciplined and suffer the years of agony the nurse has gone through. This would be a good deterrent to 'would be' anti whistle blowing managers. With payment , l guess is the company and it's insurance who bear the cost. Managers should not be let to go without accounting for their stewardship in the case.

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  • michael stone

    I think this - from the piece above - is frequently the actual position of most healthcare institutions when anybody makes a complaint against them, although it is hardly ever described as such:

    'The tribunal said Allied Healthcare had pursued a “defensive position” that was “unreasonably hostile”. It added: “This was a case in which [Allied Healthcare] chose to contest each and every aspect of the claimant’s case without, it would appear, any regard or scrutiny as to whether there was a reasonable basis.'

    Hospitals, etc, do not normally investigate [the 'validity' of] complaints - they set out to defend themselves against the complaint (and hence, do not 'learn from their mistakes' as well as would theoretically be possible).

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