A specialist doctor, who lost his job at a Norfolk hospital for processing the blood samples of private overseas patients on the NHS, was unfairly dismissed, an employment tribunal has found.

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Tubonye Harry, a genito-urinary specialist at the James Paget University Hospital in Gorleston, was dismissed for gross misconduct last January after it emerged that he had also carried a sample of HIV-infected blood in his hand luggage on a flight from Africa to the UK.

However, the consultant who had worked for the NHS trust for 16 years and had helped set up the Bure Clinic for patients with sexually transmitted conditions, was unfairly dismissed by the hospital, an employment judge ruled.

Officials from the hospital said they were considering an appeal following the judgement.

Dr Harry returned from annual leave in Nigeria in December 2010 and originally processed two samples as NHS patients and had attempted to dispense antiviral drugs to one of the patients - even though they had Nigerian addresses. He later asked for their records to be changed to say they were private patients.

Following his suspension, it was also found that blood samples and swabs that were transported from Africa to the UK should have been packed in the aircraft’s hold and Dr Harry had breached regulations designed to prevent passengers being exposed to infection.

However, employment judge Robin Postle ruled that the doctor’s dismissal was “both procedurally and substantively flawed” following a tribunal hearing in Norwich.

The judge said legal advisers to the James Paget University Hospital had given conflicting advice regarding the case and the position of the NHS trust regarding the treatment of private patients and the position of transporting blood samples into the UK from Nigeria was not clear or well-known. The judge added that the doctor had a “previously unblemished” employment record and his employer should have started from a position of assuming there were legitimate explanations for his actions.

Olu Ogunnowo, a Norwich-based solicitor, who represents Dr Harry, said his client hoped to practise again in the UK following the resolution of the case. The doctor has permission to work in the UK from the General Medical Council, but is currently working on a research programme in Nigeria.

Mr Ogunnowo said: “I think there is a sigh of relief and he was quite emotional. He is one of the very few who puts a lot into what he does and he single-handedly put together the specialist Bure Clinic.”

“When the hospital took the decision, they did not know what the legal position was in terms of the transportation of blood and they had to seek legal advice. If they were not clear of the rules, he should not have been punished. We believe the method of transport we took was necessary to avoid negligence.”

A spokesman for the James Paget University Hospital said: “We are disappointed by the findings of the tribunal in relation to this case. We are studying the report in detail before assessing what further action we could take, including a possible appeal. Therefore, it would be inappropriate to comment further at this time.”

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