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A tribunal rules a doctor’s dismissal as unfair (4 February 2013)

Date: 04/02/2013
Duncan Lewis, Legal News Solicitors, A tribunal rules a doctor’s dismissal as unfair

An employment tribunal ruled that a specialist doctor who was sacked from a Norfolk hospital for processing the blood samples of private overseas patients on the NHS was unfairly dismissed.
Tubonye Harry, a genito urinary specialist at the James Paget University Hospital in Gorleston, was dismissed for gross misconduct last January after it emerged that he had also carried a sample of HIV infected blood in his hand luggage on a flight from Africa to the UK.
However the tribunal had ruled that he was subjected to unfair dismissal by the hospital. The consultant had worked for the NHS trust for 16 years and had helped set up Bure Clinic for patients with sexually transmitted conditions.
After coming back from his annual leave in Nigeria in December 2010 he processed two samples of blood, for Nigerian patients with Nigerian addresses, at the NHS. Buy subsequently asked for their records to be changed as private patients.
He was suspended and was found to have breached the regulations designed to prevent exposure of passengers to infections, by not packing the samples and swabs in the aircrafts hold.
At a tribunal hearing in Norwich the employment judge ruled that the doctor’s dismissal was both procedurally and substantively flawed.
The grounds for the ruling, the judge Robin Postle said was that legal advisers to the James Paget University Hospital had given conflicting advice regarding the case and the position of the NHS trust regarding the treatment of private patients and the position of transporting blood samples into the UK from Nigeria was not clear or well known.
The judge added that the doctor with an unblemished employment record and his employer should have started from a position of assuming there were legitimate explanations for his actions.
Employment law lawyer for Dr Harry said that his client hoped to practice again in the UK following the resolution of the case. The doctor has permission to work in the UK from the General Medical Council, but was currently working on a research programme in Nigeria.
The lawyer added that his client was one of the very few people who put a lot into what he did and single handedly set up the specialist Bure Clinic.
The authorities at the hospital who took the decision to sack Dr Harry were unaware of the legal position of transportation of blood and they sought legal advice and question was if they were not clear of the rules whether they should have sacked Dr Harry in the first place. The method of transportation that the doctor took was to avoid negligence the lawyer argued.
A spokesman for the James Paget University Hospital said they were disappointed by the findings in the case and were considering going for an appeal.

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