Skip to main content

Trust CEO ‘must apologise’ over covid work demands

Published on: 29 Apr 2024

An employment tribunal has said a hospital chief executive should apologise to a surgeon whose mental health was affected by the way it handled his shielding during covid.

Countess of Chester Hospital Foundation Trust must pay Professor Fahmy Fahmy £74,000 for the “anguish” caused by its conduct after he asked to be removed from face-to-face duties at the outbreak of the pandemic.

The 61-year-old diabetic was “scared of catching covid and the delay in assessing his vulnerability and risk added to his anguish”, Judge Liz Ord said.

She added: “The undermining manner in which the [trust] communicated about the claimant’s duties [when he was excused face-to-face work] to colleagues increased his distress. This was exacerbated by excluding him from [overtime work], allocating him additional work without pay, delaying his grievance and not actioning his return to work in a timely manner.”

The hand and plastic surgeon was part of a four-man team at the trust when covid hit. After he was allowed to stop his face-to-face duties the team had to figure out who would do what work. The tribunal found his line manager should not have done this via WhatsApp, and he had complained about “sensitive and confidential information being shared with others”.

The judgment said he “felt this was the worst period in his whole career. He lost inner peace and experienced severe pain and hurt regarding his standing and status within the hospital” and was prescribed medication for severe anxiety.

The remedy judgement published this week found that during grievance proceedings he brought, the trust had “purposefully withheld” information about the allocation of extra shifts Professor Fahmy’s colleagues had done. It ordered he be awarded a sum equivalent to what he would have earned in overtime.

The tribunal said divisional director of planned care Michelle Greene was “irritated with the claimant for standing up for his right to refrain from face-to-face patient work during covid. The tone of her email of 15 May 2020 regarding his request to refrain from face-to-face work, and her wording saying he could not ‘unilaterally decide’ [to do this], reflects this. We find that, the claimant not doing face-to-face work contributed to [her] noting concerns on his appraisal.”

Judge Ord recommended the trust change Professor Fahmy’s appraisal records to say there were no concerns about him, and said its CEO should apologise.

No concerns had been raised on his appraisal in his previous 20 years at the trust.

The judgment said: “The concerns were unjustified and they were not a proportionate means of achieving the respondent’s legitimate aims.”

The recommendation of an apology and altering personnel records is rare in employment law.

Asked by HSJ whether trust chief executive Jane Tomkinson would issue the apology recommended by the tribunal, and update Professor Fahmy’s record, a spokesperson said: “We take the matters outlined in this report very seriously and acknowledge the outcome – we are considering the recommendations carefully.”

The trust chief executive at the time of the initial dispute was Susan Gilby, although she is not mentioned at any point in the judgment. Dr Gilby has her own employment tribunal case against the trust listed for December 2024, regarding her claim of unfair dismissal.