A new way forward for disciplinaries: the whistleblower’s view

HSJ  28 JUNE, 2016 BY ,

The ways in which the NHS deals with disciplinary staff problems is a mess: antiquated, costly, legalistic, full of double standards, prone to conscious and unconscious bias, and – on occasions – deadly unfair. Here senior NHS HR director Dean Royles and sacked whistleblower Narinder Kapur join forces to make the case for major reform.

 

The Problem

Justice, fairness, truth, and compassion are emotional words. The very mention of them demands a response and they are all concepts we have seen working for good, and we have experienced what happens when they are disregarded or abused.

We both have many years’ experience in the NHS, are passionate about preserving an institution free at the point of need and often talk up the wonderful things the NHS has achieved for our society. We both know it’s not perfect and we have enjoyed debating ways to make the NHS fairer.

Dean Royles

One of the areas that has taxed us is disciplinary and capability procedures for staff and for doctors in the NHS. For doctors and dentists, this is known as Maintaining High Professional Standards (MHPS), and is a nationally negotiated policy. For other NHS staff, be they nurses or neuropsychologists, employers are free to draw up their own procedures. There is much we agree on:

  • There are clear double standards in the NHS, with one set of policies and procedures that apply to doctors and dentists, and another set of procedures that apply to other NHS staff. This ‘apartheid’ clearly sows the seeds for justifiable complaints of unfairness.
  • Current procedures are antiquated and are now not fit for purpose (MHPS is over 10 years old).
  • Neither employers nor employees have confidence in their ability to help resolve concerns quickly and fairly.
  • There is a disproportionate impact on BME staff.
  • They take too long to get issues resolved.
  • Delays impact negatively on doctors, their family, patients and on employers and the public purse.
  • The procedures have become damaging to morale and motivation, and have negative effects on trust and confidence between employers and employees.
  • They represent an unsatisfactory process for resolving issues in the case of staff raising concerns and whistleblowing.
  • They need a significant overhaul.

Although we have different (but often overlapping) solutions to the problems that exist, we both see the urgent need for change. The status quo is untenable with regard to positive employee relations, and without change, concerns and injustice will continue to exacerbate.

It is not fair that there are two separate systems to manage important issues like conduct and capability. It is in the interests of all concerned – NHS employers, NHS staff, patients, the government, the public purse and the reputation of this country in the eyes of the world – for the current system to be subject to a major review and for improvements to be put in place.

Narinder’s Solution

I would like to start with a brief mention of the case of Amin Abdullah. Amin was of Indian origin and grew up in an orphanage in Malaysia. He fulfilled his dream of becoming a nurse in the NHS, and during his training he won an award from the hospital that later employed him.

In Malaysian tradition, he regarded the NHS as part of his ‘family’. On February 9, 2016, not long after he qualified and a few weeks after going through a harrowing and drawn-out dismissal procedure, he set himself on fire outside Kensington Palace just days before an appeal hearing against his sacking. He died a slow, agonising death.

Amin was an outstanding nurse but was being disciplined because of the way in which he stood up for a colleague — he was one of 17 NHS staff who signed a petition in support of the colleague when a patient complained, but he was the one singled out for punishment.

Sadly, Amin Abdullah’s case is far from an isolated incident. There are numerous other cases, going back as far as the landmark case of Graham Pink in 1990, the nurse sacked after raising concerns, and who wrote of his experiences in his book, A Time to Speak.

Health secretary Jeremy Hunt’s statement in the House of Commons on March 9 2016 — that a “culture change must also extend to trust disciplinary procedures” — is at long last a clear recognition that there are sometimes major flaws in how staff are treated in the NHS.

Jeremy Hunt’s public support for Professor Nadey Hakim, the surgeon unfairly sacked by the same trust as Amin Abdullah, is to be welcomed and admired, but as a newly qualified nurse Amin did not have the financial resources of a senior surgeon with a private practice who could probably afford an expensive legal team – yet another example of disparities in the current system.

The NHS spends millions of pounds each year on legal fees relating to ‘problem staff’, and thousands of man-hours of staff time are spent on protracted legal and non-legal proceedings arising from the handling of such staff

In his 2015 report on whistleblowing in the NHS, Sir Robert Francis heard that some disciplinary hearings are little more than one-sided kangaroo courts: “Repeatedly we hear of unaccountable managers protecting themselves and undertaking biased investigations, character assassination, lengthy suspensions, disciplinary hearings which resemble kangaroo courts, and ultimately dismissal of staff who previously had exemplary work records” (p. 162).

Sir Robert Francis also documented staff being driven to consider suicide. There must be something wrong with a system that results in unfair dismissal judgments for a world leading transplant surgeon (Nadey Hakim), a young talented pancreatic consultant surgeon (Aditya Agrawal), and a past-president of a national society (Narinder Kapur), to name but a few recent cases.

There is no requirement for any staff involved in dealing with a dispute to undergo training in conscious or unconscious bias, even though there is ample evidence from a variety of sources, including employment tribunal judgments that bias is likely to occur in such settings.

Unconscious bias is now widely recognized as a major issue in healthcare, and even in the highest levels of the British justice system (Lord David Neuberger, Head of Supreme Court, 2015).

There must be something wrong with a system that results in unfair dismissal judgments for a world leading transplant surgeon

The NHS spends millions of pounds each year on legal fees relating to ‘problem staff’, and thousands of man-hours of staff time are spent on protracted legal and non-legal proceedings arising from the handling of such staff.

This is money and time that the NHS can scarcely afford in these times of austerity and which could instead be allocated to patient care. Currently, the only beneficiaries are lawyers’ bank accounts.

When things go badly wrong for patient safety, there are often extensive efforts to ‘learn lessons’, whether it be a local Root Cause Analysis or external independent inquiries, depending on the seriousness of the incident. There is now even a separate body, the Healthcare Safety Investigation Branch, to investigate major patient safety incidents.

Is it not equally vital to learn lessons when things go badly wrong with regards to how staff are treated? If someone dies as a result of an unfair dismissal decision, should that not be classed as a form of ‘Never Event’? Can we justify one set of standards for patients and another set of standards for staff?

What is needed is a fundamental review of current procedures, something that BME leaders and leading whistleblowers have been repeatedly requesting

For remedies to this situation, I look to great leaders such as Mahatma Gandhi. Gandhi often pronounced that the problems human beings face, and their solutions, are as old as the hills. For Gandhi, there were two basic truisms to enlightened existence – ‘Truth’ and ‘Love’.

Keeping these ‘basics’ in mind, when dealing with staff who are classed as ‘problems’ the NHS should respect three principles for investigation – Independence, Expertise and Plurality.

Thus, Independence means that an investigatory or disciplinary panel should have members that are independent of the employer, to help prevent conscious and unconscious bias and to prevent kangaroo courts and witch-hunts.

Expertise means that there should be relevant expertise brought to bear, whether it be in the speciality of a staff member under investigation, or more generally expertise in wider issues.

Plurality simply means more than one person on an investigatory or dismissal panel, since at present NHS Trusts are; for example, free to have just a single dismissing officer to decide the fate and livelihood of a member of staff.

When deciding on ‘treatment’ or ‘punishment’, there should be respect for two key principles – Proportionality and Compassion.

Unconscious bias

Proportionality would take into account the past record of staff, whether patients were harmed, whether wrongdoing was deliberately enacted, whether the person shows insight and remorse if he / she has done wrong, how likely it is that a future similar offence will be committed, how likely it is that remediation would help, etc.

At present, NHS employers are in a difficult position, as they often only have a choice between retaining someone and sacking them. A system that respects proportionality could involve staff losing one, two or three months’ salary for offences categorized in a reformed framework as serious at graduated levels, but not classed as dismissible.

Such a system could also involve having a ‘Two Written Warnings’ rule for some cases that are currently classed as ‘gross misconduct’. Compassion would involve not only psychological support, but also an ‘Impact Assessment’ of the planned punishment on the individual – family, finances, well-being, etc and would also include support for redeployment.

What is needed is a fundamental review of current procedures, something that BME leaders and leading whistleblowers have been repeatedly requesting. Such a review would gather hard evidence and would sample views from a wide range of sources, including employers, employees, trade unions, employment tribunal judges, the legal profession, MPs, whistleblowers etc.

A system that respects proportionality could involve staff losing one, two or three months’ salary for offences categorised in a reformed framework as serious at graduated levels, but not classed as dismissible

It would take into account published research related to key issues such as unconscious bias. It would explore why BME staff are over-represented in disciplinary hearings.

It would gather information on financial expenditure and financial controls in relation to staff disputes, and related issues of transparency and accountability. It would look at healthcare models outside the UK for dealing with disciplinary matters.

Such a review would ideally be wide-ranging in its scope, would encompass undergraduate and post-graduate training of NHS staff, and would also seek the views of regulatory bodies such as the General Medical Council, Nursing and Midwifery Council and Health and Care Professions Council, as well as supportive bodies such as the National Clinical Assessment Service, Advisory, Conciliation and Arbitration Service and the Social Partnership Forum. The review could consider proposals such as that for a Staff Support Commission.

One of the key aims of a review would be to put in place mechanisms and procedures to help prevent disputes in the NHS getting out of control to the point that they end up in threatening correspondence, in legal exchanges, in dismissal and appeal hearings, in employment tribunals, or in spurious referrals to regulatory bodies, all of which can prove extremely costly, badly damaging to reputations, and terribly distressing to individuals and their families.

Narinder Kapur is visiting professor of neuropsychology at University College London and Dean Royles is director of human resources and organizational development at Leeds Teaching Hospitals Trust

5 thoughts on “A new way forward for disciplinaries: the whistleblower’s view

  1. what a well put together article – When staff (including myself) are successful at ET for unfair dismissal, managers and HR staff who have caused the most severe damage (personally, professionally, financially and mentally) to their staff members are never reprimanded, held accountable for the conduct and behaviour, lack of duty of care, ignorance and breaching of their own policies and procedures (and time scales).
    They (HB staff) and there will be many involved in the employee’s case MUST be investigated (this would be just and equitable and within the remit of Natural Justice, Civil and Human Rights) for their contributory conduct which lead to unfair dismissals and when they have contributed to the death of former members of staff – They MUST be held accountable and therefore (I pray) stopped from embarking on their ‘tacts’ ever again.

    At the outset Heath Boards/Trusts do not seek to address work ‘issues’ when it is their JOB to do so – This MUST be addressed at the commencement of any investigation. It is a simple question.

    I was told the allegations against me were not raised until April 2012 – This is a LIE. The allegations aka file notes had sat on my personal file (without my knowledge or consent) since 2010, 2011, 2012.
    The most alarming was a letter/formal complaint dated 20.5.11 was read by my nurse managers and (not so) Human Resource Staff – They did ABSOLUTLEY NOTHING… the letter from newly qualified nurse (7 weeks) alludes to child abuse and potential murder of unconscious patients.
    I read the said letter (coincidentally was slipped into the investigation report) on 14th February 2013.

    When we (employees summarily dismissed for gross misconduct) say and provide credible evidence to support that we were subjected to ‘kangaroo court’ disciplinary & appeal hearings – we are told no, no, no and more no …..

    When I said “nepotism’ played an active part of my case due to the untrained IO being a former work colleague of my directorate manager (who informally told me I was going to be investigated for serious complaints and moved from my substantive post of 10 yrs) and the chair of my disciplinary hearing – I was told “I used strong words against my HB”.

    I will leave this blog now with a quote from the alleged complainant (on showing her the allegations listed in an email from the untrained investigating officer [not the complainants!!!] of the upheld allegations that lost me my 30 year NHS career, my health, future salary and pension “They are not my allegations, my complaints are from my letters of complaint” [letters unsubstantial, not signed].

    To finally … The IO got the ‘allegations’ from the witness statements’?

  2. Pingback: NHS whistleblowing articles in 2016: TWO years post Francis Review with NO change | sharmilachowdhury

  3. These things are not normal , the world is wicked and it has a wicked ruler, but will be gone soon. Truth will win in the end.

    The wicked man plots against the righteous, he grinds his teeth at him, but Jehovah will laugh at him, for he knows that his day will come.Psalm 37v12,13.

  4. UPDATE …. I did not hold any form of disciplinary record, I did not have any informal/formal warnings, I was never suspended told by directorate manager ‘no basis to suspend me, paid my full salary whilst on sick leave for 2.4 yrs, I was not referred to the NMC. The disciplinary policy does not list: Asking a colleague what hrs they work, raising concerns about stocking up the dept for pre surgical pts, discussing why staff are not preparing the dept prior to surgical lists, asking a newly qualified nurse to sit in to lean an aspect of the ‘job’ and finally the claimant kept a diary (due to being bullied, victimised and stalked during their (my) employment) as Gross Misconduct … However, these were the allegations upheld by my Health Board as Gross Misconduct.

    I was told ‘I showed no remorse or act of contrition – I am unsure how I could have when never told of the allegations during my employment and only aware of the totality via email from the IO on 12.9.12 which was 5.5 months post informal meeting (2.4.12) my last day of ever working for the NHS. The allegations were replica’s of ‘file notes’ kept on my personal file, without my knowledge or consent by other staff members know one year old? Not surprising the complainant stated (under oath) they were not her allegations.

    MISCARRIAGE OF JUSTICE – Newly qualified nurse aka COMPLAINANT named and blamed for instigating complaints against me – Not further questioned by ET.
    PERJURY – Senior member of HR stated they do not suspend staff under the Dignity of Work Policy …. This is a lie when the same HB suspended another staff member under the D@W Policy in April 2012 – Not further questioned by ET.
    PERVERTING THE COURSE OF JUSTICE – The same HR staff member stated the investigation witness interview notes were DESTROYED – Not further questioned by ET.

    BIAS, PERVERSITY & LACK OF NATURAL JUSTICE/JUSTICE – ET Judgments relied/based decisions on statements which were historical and not relevant to findings of fact being heard from Senior Staff Members/Nurse Manager who did not attend ET or submit witness statements.

    Over and out for now
    Ellen

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