Former Queen’s surgeon in Scotland was unfairly dismissed by NHS Grampian, says tribunalBMJ 2019; 367 doi: https://doi.org/10.1136/bmj.l6443 (Published 08 November 2019) Cite this as: BMJ 2019;367:l6443
The Queen’s former surgeon in Scotland has won an employment tribunal claim for constructive unfair dismissal against NHS Grampian, his long term employer.1
Zygmunt Krukowski, a consultant surgeon at Aberdeen Royal Infirmary, resigned in April 2016, just before he was due to undergo a disciplinary process, handling of which was branded “incompetent” by the tribunal. He was surgeon to the Queen for 12 years, until May 2016.
He was awarded a personal chair in clinical surgery by the University of Aberdeen in 1999, and the tribunal agreed that he was “internationally renowned” and “a highly competent surgeon.”
Employment judge Alexander Meiklejohn, along with tribunal members Stuart Gray and Mary Williams Edgar, unanimously ruled that Krukowski was constructively dismissed by NHS Grampian when he resigned in response to material “breaches of trust and confidence.”
The health board had failed to comply with NHS circulars governing the disciplinary process, had not provided a sufficiently detailed list of allegations against him, and denied him access to documents he needed to answer the allegations of misconduct.
Just before the hearing date it introduced a new and serious allegation that he had made a racist comment two years before, referring to some surgeons as a group of “hairy arsed Muslims.” The tribunal found that the comment had been made, but not by him.
After Krukowski raised patient safety concerns with management in late 2014, the Royal College of Surgeons and Health Improvement Scotland each carried out a review. Health Improvement Scotland reported that one of the surgical units was “significantly dysfunctional” and that there were “serious allegations about individual consultants which must be resolved.”
An investigation was carried out, supposedly under the Dignity at Work process, but without the written statements from complainants that the procedure requires. Krukowski, along with some other colleagues, was accused of harassment and bullying. He was suspended in May 2015 on full pay.
The two review reports were sent to the GMC. NHS Grampian went ahead with the disciplinary process on the basis of the bullying and harassment allegations, along with further claims introduced at a late stage relating to Krukowski’s use of IT.
The case was due to be heard in April or May 2016, but in April he resigned. In September 2016 the GMC decided to close the case with no action.
The employment tribunal heard that Krukowski felt he had no option but to resign, to protect his own health and wellbeing. He told the tribunal that he had broken down at a meeting with his solicitor, Caroline Carr of the law firm BTO, just before his resignation.
When Krukowski was asked about this meeting at the tribunal, Meiklejohn said, “He became emotional and we took a short adjournment . . . His reaction spoke more eloquently than words could convey how he had felt at that time, immediately before his resignation.”
The tribunal found, however, that NHS Grampian had not subjected him to detrimental treatment because of his whistleblowing and had not discriminated against him on grounds of race.
Krukowski said he was “gratified” that the tribunal had decided unanimously that NHS Grampian’s actions amounted to constructive unfair dismissal. “The process has been traumatic and not how I would have chosen or expected to leave the hospital and patients to whom I devoted more than 40 years of my professional life,” he said in a statement released through his solicitor.
NHS Grampian said, “We are disappointed with the tribunal’s decision that Professor Krukowski’s decision to resign amounted to a constructive dismissal. We will look to learn from the tribunal’s comments on the processes and procedures followed and what changes could be made. To an extent this process has already started, as the national procedures, created in 1990, which were involved in this case, are currently under review by the Scottish government.”
Compensation will be decided at a future hearing.