In early May 2023 the Isle of Man Employment and Equality Tribunal (‘the Tribunal’) awarded a record £3.2 million settlement to former chief medical officer Dr Rosalind Ranson after she succeeded in her claim against the Department of Health and Social Care (DHSC) for being unfairly dismissed due to whistleblowing. The Tribunal additionally awarded 70% of her legal costs to be paid by the DHSC which is currently under assessment, rarely awarded by the Tribunal.

This is understood to be the highest compensatory payment ever awarded by the Isle of Man Employment Tribunal to date, and comes only second to the England and Wales case of Michalak v Mid Yorkshire Hospitals NHS Trust (ET/1810815/08) with a sum of £4.5 million awarded for an unfair dismissal and sex and race discrimination in 2011.

This article explores the main points of consideration in this case and the particular hurdles faced by medical professionals when making protected disclosures in the workplace.

Summary of the Case

Dr Rosalind Ranson was appointed as a Medical Director by the DHSC for a limited term of 2 years in January 2020, shortly before the onset of the Coronavirus pandemic. Although she continued to be employed until January 2022, Dr Ranson advanced the case that she had been unfairly dismissed on 31 March 2021 as her role had not been transferred to Manx Care by this date.

The context forming the backdrop to this was the DHSC having been redesigned on 1 April 2021 such that its responsibility to provide health and social care services was shifted to Manx Care. Whilst Dr Ranson’s role continued with the DHSC, she alleged that she was left with an ‘empty shell role’ after this date comparative to the position she had when she commenced her employment. Dr Ranson contended that her role had not been transferred to Manx Care because she made a series of alleged ‘protected disclosures’ relating to the health and safety of the public during Covid-19.

Amongst the disclosures made, Dr Ranson had “warn[ed] that a graph being used in Press Briefings gave a misleading impression of the reality of the risk of an uncontrolled spread of the virus” (para 289, Ranson v Department of Health and Social Care 9 May 2022). She also highlighted that she considered a change to the Testing Pathway 2 which did away with the policy of essential healthcare workers entering the Isle of Man to undergo a PCR test for the virus on the date of arrival as unsafe (para 331, Ranson v Department of Health and Social Care 9 May 2022). In other words, Dr Ranson claimed that her protected disclosures as to the way in which the DHSC were handling protective measures in response to the pandemic led to her not being transferred to Manx Care, thereby constituting an automatic unfair constructive dismissal.

After a lengthy 10-day hearing, the Tribunal found that Dr Ranson’s role changed on 1 April 2021 which amounted to a fundamental breach and repudiation of her contract of employment. It further found that she was unfairly dismissed from her role on 31 March 2021 having been employed for more than a 12-month period, and she suffered detriment due to having made protected disclosures relating to health and safety consistent with s71 Employment Act 2006.

Compensation Awarded

Dr Ranson was awarded a total sum of £3,198,754 including compensation for loss of net earnings, future loss of earnings and injury to feelings.

An interesting point to note for employment lawyers both in the Isle of Man and the UK is that the Tribunal felt it justified to award Dr Ranson both aggravated and exemplary damages. This is almost as rare as the sum of the award itself.

Aggravated Damages

Aggravated damages form part of an award of injury to feelings. They are compensatory in nature towards the claimant and are awarded on a discretionary basis by the Tribunal where they find that the respondent has acted in a particularly “high-handed, malicious, insulting or oppressive” way (as seen in Broome v Cassell (No 1) [1972]). An employment tribunal is required to find that the Respondent had the motive to act in such a manner. In this case the Tribunal awarded £40,000 to Dr Ranson after finding that whether the DHSC had acted in this way was beyond argument.

Note that the above is generally quite difficult to achieve; even in the UK case of Michalak (above), although the Employment Tribunal stated they were “positively outraged” by the conduct of the employer and awarded the Claimant £300,000 for injury to feelings, they notably made no award for aggravated damages.

Exemplary Damages

Unlike aggravated damages, exemplary damages are awarded to punish the respondent for the manner in which they behaved against the claimant. Albeit rare to come across, they are usually awarded in discrimination-related employment cases. Nevertheless, the Tribunal awarded Dr Ranson a sum of £10,000.

Awarding both such damages reflects that an employment tribunal may be convinced to do so in unique dismissal cases where an employer has acted in an exceptionally damaging and malicious manner towards the claimant.

Protected Disclosures: the Law

Under s50(1) Employment Act 2006, a protected disclosure can be made by a worker in which they reasonably believe one or more of the following:

• a criminal offence has been, is being or is likely to be committed;
• a person has failed, is failing or is likely to fail to comply with any legal obligations to which he or she is subject;
• a miscarriage of justice has occurred, is occurring or is likely to occur;
• the health or safety of any individual has been, is being or is likely to be endangered;
• the environment has been, is being or is likely to be damaged; or
• the information regarding any of the matters above is, or is likely to be, deliberately concealed.

Dr Ranson successfully relied upon the fourth point above in establishing that the disclosures she made were protected. Note that under the law, whistleblowing in the workplace can only be considered as such if it is related to public interest; personal disclosures do not fall within the ambit of this legislation.

A particular point to note for employers is that employees are not required to label a whistleblowing disclosure to be considered as such by a Tribunal, and can be made either orally or in writing. Due to this, employers oftentimes find themselves not taking information they receive as seriously as the whistleblower is intending for it to be. The Tribunal noted that such situations are all too frequently encountered. Employers would therefore be minded to clarify with an employee if they are receiving sensitive information and treat it with greater attention and care, so as to save potential time and expense in the future.

It should be noted that changes to Manx whistleblowing laws are afoot and are currently being debated in Tynwald. Such proposed changes include introducing a ‘public interest’ test, provision for an employee to declare when they are making a protected disclosure to the recipient, and for prescribed persons to produce an annual report on disclosures made to them by workers.

Particular dilemmas faced by medical practitioners

The ramifications of medical practitioners making a legally protected disclosure come at a crossroads with the organisational professional standards required to be met in the UK. Practising doctors are bound by the General Medical Council (GMC) as their statutory regulatory body, and are required to abide by their Good Medical Practice guide. Under paragraph 25 of the guide, doctors are required to take prompt action regarding concerns about patient care, safety and dignity as a matter of professional duty. The GMC standards extend to Manx medical doctors.

Doctors are thus professionally obliged to disclose information when they believe that such risks exist. However, this principle might be at odds when faced with unhealthy or hostile work environments that do not foster the ability to disclose individual concerns regarding patient care. As noted by the Tribunal, Dr Ranson had attempted to address organisational issues in the DHSC including a culture of not reporting or investigating concerns, a lack of medical management and systemic bullying (para 128, Ranson v Department of Health and Social Care 9 May 2022).

Healthcare whistleblowing in a difficult work environment is a familiar UK NHS theme. In March 2022 NHS Staff Council’s Health, Safety and Wellbeing Partnership Group published infographics sharing key statistics. This included how 18.7% of staff experienced bullying or harassment in the last year from colleagues and 12.4% experienced the same in the last year from their manager. Such environments are not conducive to sharing concerns or serious protected disclosures regarding patient safety and care, and lends the risk of medical practitioners suffering harsher treatment and disadvantages if they do so regardless of their professional duty.

Moving Forward

This case is significant for medical professionals and health authorities alike. It will continue to have implications in the Isle of Man and beyond. Whistleblowing claimants should however be careful about expecting that level of compensation award. The level of award in Ranson is not the norm and it is based on a specific set of facts. The awards bar may have been raised but the majority of cases will remain well under that compensation threshold.

Aiza Khan is a trainee advocate at M&P Legal. This article does not constitute legal advice. You should seek specialist advice on each set of given facts.

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