Nurse who broke legs was 'unfairly sacked'

A nurse who suffered two broken legs while out running was unfairly sacked after her bosses at Wigan Infirmary failed to properly consult their own occupational health department, an employment tribunal has ruled.

Wednesday, 20th December 2017, 2:00 pm
Updated Wednesday, 20th December 2017, 3:05 pm
Wigan Infirmary

Judith Fitzmartin was working in the medical assessment unit at the hospital, in June 2016, when she suffered the fractures to both her legs, the hearing in Manchester was told.

One of the breaks was discovered when she was x-rayed in July - but the second fracture was not identified until 10 weeks after she sustained the injury, the tribunal heard.

She informed her employers that the injury had left her with serious mobility issues and she was signed off sick from June until her eventual dismissal, the hearing was told.

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Ms Fitzmartin was seen twice by Ben Coupe, a consultant orthopaedic surgeon, who gave her crutches and told her to rest her knees for at least six weeks.

Meanwhile she was also seen by Dr Surinder Kumar, an occupational health consultant, who declared she was “unfit for work” but arranged a second meeting for a month later.

The nurse also underwent a series of meetings with Carolyn Dereszkiewicz, head of nursing scheduled care, and human resources representatives, during which she was warned she was in danger of having her contract terminated.

The tribunal heard Ms Fitzmartin produced a sick note, running up to December 4 that year, and was also discussing taking four weeks annual leave, when that expired, so she could fully recuperate and return to work in January.

Giving evidence, the nurse said that this proposal appeared to be dismissed by Ms Dereszkiewicz, who seemed to be “angry” that she would not be available over Christmas and the New Year.

The nurse’s fate was sealed, with the notes of a final review confirming a decision was taken to dismiss Ms Fitzmartin on capability grounds, as there was still no guarantee when she was due to return.

An application was made by the nurse to Wrightington, Wigan and Leigh NHS Foundation Trust (WWL) for ill-health retirement but that was also rejected, the tribunal heard. Before her dismissal, Ms Fitzmartin had been an acting co-ordinator in the medical assessment unit, which could take in up to 12 patients a day from the accident and emergency unit, and had also worked on Ince Ward, an acute unit for cardio and respiratory patients.

In evidence Ms Dereszkiewicz said she did not consider there was a role the nurse could adopt within the hospital, even on a temporary basis, covering clerical or administrative duties.

Ruling in the nurse’s favour, Employment Judge Vincent Ryan said even if Ms Dereszskiewicz did not have the opportunity to see the occupational health report at her meetings with Ms Fitzmartin, it would not have been reasonable to make a decision without considering them.

He said: “It seems to me unlikely that any reasonable employer in that situation, having referred to occupational health, and knowing occupational health were intending to see someone again, would reach a decision without having seen the second occupational health opinion that was shortly to be provided.”

However, the judge also ruled that WWL was not at fault for the fact that the full extent of the nurse’s injuries were “inadequately diagnosed” for 10 weeks, as part of her sickness absence.

He said his preliminary view on any potential payout was that there was a 50 per cent chance she may have been dismissed in any event. Another hearing will be fixed to discuss any future award.

A spokesman for WWL said: “Whilst the Trust is unable to comment on specific confidential employment matters, it is appropriate to state that the Trust always seeks medical advice via the internal Occupational Health department or a medical specialist ahead of considering the ongoing employment of any employee.

“The Trust is mindful of public money expenditure and balancing this against maintaining employment where there is no assurance an employee will return to work within a reasonable time.