Hospital trust remedies nurse's claim

Judith Fitzmartin worked at Wigan Infirmary before her dismissal
Judith Fitzmartin worked at Wigan Infirmary before her dismissal
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Hospital bosses have settled an employment claim with a nurse who was “unfairly sacked” after breaking both of her legs.

An employment tribunal into the case of medical assessment employee Judith Fitzmartin, ruled that bosses at Wrightington, Wigan and Leigh NHS Trust failed to properly consult their own occupational health department.

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Following a hearing in October 2017, Employment Judge Ryan ruled that the parties are allowed to “carry into effect” an agreement made between them at a special remedy hearing - but the final sum of money shall remain private information.

Ms Fitzmartin was working at the hospital, in June 2016, when she suffered the fractures to both her legs whilst running outside working hours.

The hearing heard how the injured nurse informed the trust that the breaks, one of which took 10 weeks to be diagnosed, had left her with serious mobility issues and she was signed off sick from June until her eventual dismissal.

She 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.

Dr Surinder Kumar, an occupational health consultant, also met with Ms Fitzmartin and declared her “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 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 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 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.”

He 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.

A spokesperson for WWL said: “The case has been concluded in accordance with the Employment Tribunal remedy hearing. This is not the quite the same as a private settlement.

“We will not be making any further comment.”