The Herald 24 March 2018
May Hendry, a dentist based in Troon, won her employment tribunal against NHS Ayrshire and Arran (Pic: Colin Mearns)
A RESPECTED dentist who successfully sued her health board after she was victimised for exposing misconduct has revealed that her legal costs outweigh her compensation despite a damning judgement against the NHS.
Dr May Hendry and her solicitor, Stephen Miller, said the case underlines how difficult it is for ordinary members of the public to pursue legal action against the “unlimited budgets” of the NHS.
Dr Hendry, 57, was vindicated at an employment tribunal against NHS Ayrshire and Arran in 2017 in a determination that condemned senior executives for trying to cover up wrongdoing.
Dr Hendry was awarded £80,000 damages for constructive dismissal but this will be slashed after tax, and she also incurred £85,000 in legal costs and expenses.
Whereas successful claimants in negligence cases are entitled to have their legal costs reimbursed this does not apply to employment tribunals, posing a major obstacle to staff who may wish to raise grievances for workplace bullying or harassment.
Although Dr Hendry, a part-time dentist in Troon, will have some her legal fees covered by insurance, she is still liable for much of it personally. Many NHS staff will have no insurance at all.
Mr Miller, a specialist employment lawyer at Clyde & Co, said NHS A&A had also wasted around £90,000 of taxpayers’ money on a case they were certain to lose.
He said: “The evidence against them was overwhelming, but the board were able to pursue a case knowing that the worst they could lose was £70-80,000 and even if the case took twice as long they wouldn’t have to pay May’s costs.
“So there is a definite point that goes well beyond May’s situation, which is that one of the dangers is that even if you win hands down you could end up having to nurse your own legal expenses.
“There was astonishing misbehaviour at the heart of the board and this is the thing that infuriates me about it, because they obviously thought they could get away with this.
“I’m not going to say I’ve never seen that kind of thing before, but I would say it’s one of the worst examples I’ve seen.”
In addition to working as a dentist, Dr Hendry had been a Dental Practice Adviser (DPA) for the health board since 2001. In this role, she was responsible for ensuring practices delivered dental services properly.
However, she resigned in 2016 when bosses – including chief executive John Burns and medical director Alison Graham – failed to support her against false allegations about her behaviour, which they knew to be untrue, from dentists Michael Morrow and Donald Morrison.
Dr Hendry had been involved in investigating Dr Morrow over concerns about his clinical care and allegations he had restricted NHS work at a former practice, in breach of regulations, meaning patients had to pay for treatment. He was subsequently issued with a published warning by the General Dental Council.
Mr Morrison also raised false complaints against Dr Hendry after a probe by NHS Scotland Practitioner Services uncovered “widespread misclaiming” at his Quadrant Dental Practice in Ayr.
The investigation initially indicated as much as £300,000 had been misclaimed for gold crowns and other treatments never used on patients, although this was later revised down to £85,000, some of which is still being recovered.
The judgement criticised an “unseemly eagerness” by senior NHS executives to “dance to the tune of the complaining dentists”, while sidelining Dr Hendry.
For example, Ms Graham – who had previously worked with Mr Morrison’s father but failed to disclose this conflict of interest – instructed that “there was to be no criminal investigation” into misclaiming.
Dr Hendry said the case was not about money for her but doing “what is right for patients”.
She said: “I was delighted that justice was done and the judgment found so decidedly in my favour.
“Despite all the upset which the senior officers at NHS Ayrshire and Arran caused me, I am also pleased that they all made it very clear in their evidence that they had never doubted my honesty or integrity and that nothing in my employment could be called into question.
“I will however, always find it scandalous that I was treated in the way I was for simply doing my job diligently; a job that included protecting patients and the public purse.”
Patrician Leiser, HR director for the health board, said: “It is regrettable when a long-standing employment relationship breaks down and an employee chooses to submit a complaint to an Employment Tribunal.
“There were two parts to Mrs Hendry’s Employment Tribunal case against the Board – a whistleblowing case and a constructive dismissal case.
“Unfortunately, attempts to resolve the concerns raised by Mrs Hendry outwith the tribunal process proved unsuccessful.
“The legal costs incurred in defending the claim (£86,151.07) were in proportion to the length of the hearing, which defended both aspects of the claim and resulted in dismissal of the whistleblowing case.
“NHS Ayrshire & Arran was disappointed by the finding of unfair constructive dismissal, but accepts the decision of the Tribunal.”