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Practice nurse dismissed after covering up unnecessary smear test wins unfair dismissal case because of ‘procedural errors’

Makbool Javaid, Partner - Simons Muirhead & Burton

In the case of Mrs Julie Higham v NM Health Innovation Limited an employment tribunal concluded a practice nurse engaged in ‘serious’ misconduct by altering a patient’s records to cover up an unnecessary smear test, leading to her dismissal. Julie Higham qualified as a nurse in 1987 and began working at Lostock Hall Village Surgery in 1998. One of her duties was to carry out smear tests on women.

In February 2021, a patient, referred to as SB, complained to the surgery about a smear test she had carried out by Mrs Higham five days before. The patient told the surgery that the smear test was ‘very rough and painful’ and she had informed Mrs Higham she had recently had an gynaecological procedure.

The patient said that it was only after taking the smear that Mrs Higham ‘looked at her notes and realised the smear should not have been taken because the gynaecological procedure may affect smear results’. An investigation by the surgery found that a painful smear had also been carried out on a 61-year-old patient without the use of lubrication, that Mrs Higham had taken her log records home and burnt them and put a false entry on the patient’s records stating a smear had not been taken when it had.

In June 2021 Mrs Higham was invited to a disciplinary hearing by Tracy Muttucumaru in which five allegations were put to her. The allegations were all found proven and Mrs Higham was sacked for gross misconduct and a gross breach of trust.

Mrs Higham later brought an Employment Tribunal claim for unfair dismissal and unauthorised deduction from wages against NM Health Innovation Ltd which runs the surgery. Although Employment Judge Cowx found Mrs Higham’s claim succeeded, as a result of procedural grounds, he did not order any compensation as he found that ‘her dismissal was entirely caused by her own blameworthy action’.

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