IVF clinic whistleblower wins unfair dismissal case

An embryologist has won claims of whistleblowing detriment and unfair dismissal against a Scottish private fertility clinic.

Ann Henderson, former senior embryologist and laboratory manager at TCP GRFM Fertility Clinic, Glasgow, was dismissed from her position after repeatedly raising concerns about practices at the clinic. Henderson claimed staff shortages, excessive workloads and inadequate training were leading to 'unacceptably high level of risk of errors' at the clinic.

In an email to commercial director Mark Tomnay, Henderson raised concerns about embryologists working excessively long hours: 'I don't believe in grinding on as usual is beneficial at the moment. Not for morale and staff retention. Not to mention the risks of errors with so many partly trained staff'.

In 2018, management of the clinic was taken over by TFP Fertility, having previously been operated by private healthcare company Nuffield. Repeated claims of problems made by Henderson were dismissed by management, despite incidents of patient egg mishandling causing 'egg survival rates after thawing to be low in some cases'. She claimed that patients' prospects of successful fertilisation were being impacted, and suggested switching to a 'fresh egg' method of IVF to tackle laboratory and staffing issues.

When requesting new lab equipment in an effort to improve practices, Henderson was told there was 'no budget allocation for it in the current year and that it may be reviewed in the future'. The company instead sought to hold Henderson personally responsible for laboratory and staffing failures, the tribunal heard.

The Glasgow court heard that Henderson's relationship with senior management had been strained since the clinic changed hands. Described as a 'problematic colleague', her claims were dismissed because the company wanted to avoid reduced patient numbers and income. Tomnay and director Ella Tracey were 'highly motivated' to remove her after failing to address problems at the clinic, the tribunal heard. Henderson stated that she was 'singled out and unfairly treated'.

The court ultimately found Henderson's claims of unacceptable practice at the clinic were 'genuine and objectively reasonable'. Ruling in her favour for claims related to her dismissal in 2022, the employment judge said that complaints she had made at the time to management were made 'in the genuine belief that they were in the public interest'.

Her specific claims against Tomnay and Tracey were not upheld, however. The level of compensation has not yet been set and will be decided at a future hearing.