Compensation bid rejected for nurse fired after jab error

Tuesday 19 January 2021

A nurse, who was fired after delivering a Hepatitis A booster shot at the wrong time, has had her claim for wrongful dismissal compensation rejected.

Nikla Sumesar-Rai had been employed by AXA ICAS Limited, which is part of global group providing insurance, between December 2018 and March 2020, when she was dismissed without notice for gross misconduct after failing to follow its protocol for the administration of a vaccine.

Following this, Ms Rai started proceedings with the Employment Tribunal seeking damages for wrongful dismissal, as well as reinstatement, or compensation for unfair dismissal. 

Pictured: The case was heard by Advocate Claire Davies, the Deputy Chairman of the Employment Tribunal.

It came after the nurse provided a second Hepatitis A vaccine to a patient who had received their first vaccination around two months before, when the company’s protocol was to deliver the doses six to 12 months apart.

Although the patient came for their booster earlier than would normally be anticipated likely as a result of a “booking error”, the nurse decided to proceed with the administration of the booster.

The patient didn’t suffer any harm as a result of receiving the booster early but on January 17 2020, AXA ICAS received a formal complaint from their client, the patient’s employer. They stated they had raised their concerns with Ms Rai and had been unhappy with her response as she denied there had been any error, and that the timing of the vaccination was problematic.

The client asked for a formal investigation to be carried out and complained there may have been “a serious breach or protocol."

Pictured: The company’s protocol was to deliver the doses of hepatitis vaccine six to 12 months apart.

AXA ICAS suspended the nurse the same day and Helen House, a clinical team manager and experienced nurse with knowledge of vaccination programmes, was asked to carry out an investigation.

Ms House concluded a month later that, among other things, Ms Rai had failed to follow the protocol and had “negatively affected AXA’s reputation and client relationships due to the potential high risk of harm to the service user from continued occupational exposure to Hepatitis A, without long term immunity, a potential risk of litigation to the client and medico legal and ethical implications”.

During a conduct hearing, Ms Rai argued she was qualified enough to administer a vaccine “off label” and that her decision had been justified and in the best interests of the patient who was planning to travel to a high-risk area.

Pictured: Ms Rai disputed that she hadn’t followed appropriate rules for the delivery of the booster.

AXA ICAS eventually decided to dismiss the nurse - a decision she appealed in vain, arguing that the allegations against her had evolved during the process, with other similar incidents identified during the investigation, in a way she deemed unfair. She also claimed that her employer had not given proper consideration to the flaws and errors she had pointed out in its protocol.

Ms Rai also disputed that she hadn’t followed appropriate rules for the delivery of the booster. She didn’t agree that AXA’s protocols should always be followed, and she felt that her training and qualifications entitled her to make the decision to administer the booster when she did.

In her claim to the Tribunal, she also expressed concerns about the fact managers involved in the disciplinary procedure had collaborated with each other.

The case was heard by Advocate Claire Davies, the Deputy Chairman, who concluded that the process followed by AXA had been “reasonably fair”. She agreed with the company that, contrary to Ms Rai’s view, allegations against her had remained the same with new details arising from the evidence. 

Advocate Davies also concluded AXA was entitled to reject Ms Rai’s argument that she was entitled to divert from protocol and exercise her own judgment and that it was therefore open to them to dismiss her.

Pictured: Advocate Claire Davies concluded that the process followed by AXA had been “reasonably fair”.

“I find that there was a breach of contract, and that this was a very serious matter for the employer – bearing in mind the nature of its’ business,” she wrote. “It is clear from the employment documents that a deliberate failure to follow the Protocol could lead to summary dismissal. 

“Even if the Claimant felt that she was entitled to step outside the Protocol for reasons of patient safety, there should have been documentation to support her assessment of the situation and the relevant risks.”

Advocate Davies added that it was not unreasonable of AXA to describe the incident as “a drug error” given that Ms Rai had delivered a vaccine outside of the protocol time frame.

As a result, she dismissed Ms Rai’s claims.