Was Dr David Drew sacked for trying to motivate his colleagues by emailing them the famous prayer of St Ignatious Loyola?. It seems bizarre that this would be a sacking offence – although I have to say that if my manager ever urged me to ‘toil and not to seek for rest; to labour and not to ask for reward’ I’d have some pretty stern words to say to him about the Working Time Regulations and the National Minimum Wage.
Dr Drew’s Employment Tribunal case has been widely reported this week and you can read about it in the the Mail the Telegraph, This is Derbyshire, and The Sun. Reports even reached as far afield as Australia.
The reports give the impression that Dr Drew was sacked for emailing the prayer to his colleagues and wishing one a ‘peaceful Christmas’ by text message. Read a bit deeper and you get the impression that the problem was that he would not undertake to keep religious references out of his future communication with colleagues.
All of the reports carry the same quote from Dr Drew’s evidence (I suspect everyone was working from the same press release)
“The allegation that I have forced my religion onto other people, that I am some kind of religious maniac was made worse by the fact that they told me there was no need to understand what this is all about”
That, it seems, is a reference to the hospital’s refusal to give reasons for requiring him to stop using religious references, or give further examples of when he had used them in the past.
Reading these reports, I felt there was something missing – something that didn’t quite add up. I’m not convinced that the religious elements of this case are really what the case is all about.
We should bear in mind that Dr Drew was presumably quite well paid. The cap on compensation for unfair dismissal would probably mean that a straightforward win on the unfair dismissal point would still leave him well short of recovering his losses. If Dr Drew believes that he was sacked for emailing this prayer, then the obvious claim for him to bring is indirect discrimination (for which there is no cap on compensation). But none of the reports mention discrimination – they just say that he is claiming unfair dismissal. If he believes he was dismissed for his use of religious language then surely discrimination would be front and centre of his claim? It’s not as if the press would overlook that word in a press release – they’d surely latch on to it straight away.
The answer, I suspect lies in the BBC report of the case which has a remarkably different tone and content from the other reports. The BBC reports this as a whistleblowing case and says that Dr Drew is alleging that he was dismissed because of the complaints he had made about clinical practice in the hospital. The other reports mention these allegations, but do so in passing. All the focus is on the prayer and the text message.
The BBC report makes more sense to me. Whistleblowing dismissals also have no cap on compensation, so Dr Drew will potentially recover his full losses if he succeeds in showing that the principal reason for his dismissal was that he made a protected disclosure.
Of course, if that is what he is arguing, it doesn’t make much sense for him to focus on the prayer issue. If he was dismissed on those grounds, then that may be indirect discrimination, but it would not be a whistleblowing case.
I suspect that Dr Drew is claiming that he was dismissed for whistleblowing and the employer is defending the claim on the basis that he was dismissed because of a breakdown in trust and confidence. This is what the BBC report says:
The hospital said it accepted Dr Drew was an excellent doctor, but it dismissed him on 22 December 2010 because it said there had been a complete breakdown of trust and confidence.
It said he had failed to accept the findings and recommendations of various inquiries, including a recommendation by an independent review panel that he should refrain from using religious language in all written and professional communications.
The trust said it accepted that his religious references, used as a committed Christian, had not caused offence.
The important word in that quote is ‘including’. It means that there were other recommendations that Dr Drew is alleged to have refused to accept. We are not told in any of the reports what these other recommendations are, or how important they were seen as being. For all we know the ‘prayer’ issue might have been the least important of the issues as far as the employer is concerned – although it is obviously something that Dr Drew felt strongly about. If this is how the claim is structured, then Dr Drew’s quotes about the lack of explanation from the hospital also make sense. He is saying that his alleged refusal to accept the various recommendations was merely a pretext for the dismissal which was in fact prompted by the protected disclosures (whistleblowing). He is pointing out that the issues identified by the Trust are weak and poorly explained and that they are therefore not the true reason for the dismissal. In other words – contrary to the impression given in most of the reports – he is saying that he was not actually dismissed for sending the prayer and text message at all.
It appears that the facts of this case have been distorted in order to fit the popular narrative of ‘conscientious Christian hampered by politically correct bureaucrats’. The truth, as ever, is more complicated than that. Of course, we don’t know what the truth is yet, because the Tribunal hasn’t reached a decision. If I had my way, every news outlet that reported the hearing at this stage would be required to give just as much prominence to the Tribunal’s eventual findings. I certainly will – if I can get a copy.
Meanwhile, as they say – the case continues.
You have pretty much hit the nail on the head here Darren. You may be interested in this copy of an article from the Times http://www.patientsfirst.org.uk/?p=488 concerning Dr Drews whistleblowing activities. Incidentally, as I understand it the BMAs management of this case meant that Dr Drew missed the window of opportunity to submit his case as a whistleblower who had made disclosures under PIDA. The only paper to get a grip on the substance of the story was the independent http://www.independent.co.uk/news/uk/home-news/doctor-claims-he-was-dismissed-for-whistleblowing-over-child-protection-7622017.html which happened because of the reporters’ (Nina Lakhani) interest in NHS whistleblowing. Dr Drew lost on all three points in his ET. He has just had his appeal and is awaiting the decision but the low success rate of appeals suggest that he will not be successful.
This whole case is particularly pertinent at the moment with the publishing last week of the Francis report on the Mid Staffs PI. Whistleblowers there were suppressed leading the a recommendation by Francis of a Duty of Candour for NHS staff.
Dr Drew is a member of Patients First (http://www.patientsfirst.org.uk/) which campaigns to change the law to support whistleblowers in the NHS. Its members include DR Kim Holt who was suspended for 4 years after blowing the whistle on staffing at Great Ormond St Childrens Hospital one year prior to the death of Baby P.
You may be interested to know that you can follow Dr Drew on Twitter (@NHSWhistleblowr – note no e before the r in his twitter handle)
Full judgment of the EAT is here. It is very detailed.
Whistleblowing played no part at all in this case. It was argued solely on the point of religious discrimination. Dr Drew also breached confidentiality contrary to an express instruction that he should not copy confidential information to others. This was a gross misconduct offence that would have led to dismissal in its own right.
Thanks for the link. My guess as to what was missing from the press reports was clearly misplaced. It really was a case about religion – albeit not a dismissal for emailing a prayer. It’s a long decision and one I will need to read carefully and write up properly.
David has now published his book detailing his side of this story. I can recommend it, it is very readable and has some importantinsights which were not covered by the media or the lawhttp://www.troubador.co.uk/book_info.asp?bookid=2822