Members: Peter O’Hagan Peter Kelman Ms Pamela Morrison v Represented by: Mr R Milvenan - Solicitor Nuffield Health — 2019

The claimant, Ms Pamela Morrison, was employed by Nuffield Health as a Fertility Services Manager and was a registered nurse. The respondent dismissed her for conduct after she posted on LinkedIn about a patient’s pregnancy and treatment, including a personal congratulatory comment, in circumstances where the patient had not consented to the patient’s treatment being associated publicly with the respondent. The claimant accepted that she made the post and that she had not obtained the patient’s consent.

The tribunal found that the respondent carried out a reasonable investigation and had reasonable grounds for its belief that the claimant had breached patient confidentiality, the Social Media policy and the Data Protection policy. It accepted that, although the post did not expressly state that the patient had been treated by Nuffield Health, the combination of the claimant’s name, job title, the respondent’s name, and the language used in the post meant a reader could infer that connection. The tribunal also accepted that the patient had made clear she did not want her treatment affiliated with the respondent.

The claimant argued that dismissal was too harsh and that the investigation meeting should have taken place in a more private setting. The tribunal agreed that a private room would have been preferable, but found that the location of the meeting in a gym café did not affect the claimant’s ability to participate in the process and did not make the procedure unfair. It also rejected the claimant’s argument that she had not been given time to prepare, finding that she knew an investigation was under way and knew the allegation against her.

Applying section 98 ERA 1996, the Burchell approach, and the band of reasonable responses guidance in Iceland Frozen Foods Ltd v Jones, the tribunal concluded that dismissal fell within the range of reasonable responses open to a reasonable employer. It noted the importance of confidentiality in healthcare, the claimant’s professional duties as a nurse, and the respondent’s contractual term stating that breach of confidentiality was serious misconduct likely to result in summary dismissal. The unfair dismissal claim was therefore dismissed.