UPDATE: Since publishing this article I have learned that no fewer than four Capsticks lawyers were involved in trying to remove the judge and that the firm was representing BOTH the Integrated Health Board and the NHS human resources firm. Both would have known that there were draft grievance documents that had not been disclosed to the tribunal.

The law firm Capsticks – which has a national contract with the NHS to handle employment tribunal cases – was behind an attempt to remove a judge from hearing a constructive dismissal case involving a senior official at a NHS clinical commissioning group in Norfolk.

The case – highlighted by BBC Norfolk yesterday- led the judge calling for disciplinary action to be taken against senior staff at the board for the way they treated and lied to the claimant.

Mr Clive Rennie, an assistant director, won his case for constructive dismissal against NHS Norfolk and Waveney Integrated Care Board – the successor body to the Norfolk and Waveney Clinical Commissioning Group who had previously employed him.

But not before the tribunal had spent days wrangling to get draft grievance documents which the group said did not exist while the author of the documents, NHS human resources manager Steve Stavrinou, sat at the back of the hearing, not saying a word.

He had been called in by the commissioning group to prepare the grievance papers from NHS Arden and Gem Support Unit which provided HR Services to the group. At first the existence of the draft papers were denied and then excuses such as the managing director being on holiday were used to deny the judge’s order to deliver them.

Judge Postle’s judgement, which was published yesterday, reveals that suddenly there was an application to make him recuse himself from the tribunal. The request came from Capsticks, who were the solicitors for both NHS Arden and Gem Support Unit. and for the Integrated Care Board

Until then, as the judge noted, the person from Capsticks had not been present at the tribunal to hear the proceedings but called for the judge to go.

Alistair Kernohan of Capsticks,, was in fact the partner, based in Leeds made his case by email.. Un fact Capsricks came to hearing mob handed. Both Miss Whiteley and Miss Aslam were present all the time. They were then joined by Nicola Butterworth, who sat the back of the tribunal. According to Capsticks website. ” Nicola undertakes a broad range of employment litigation work, including unfair dismissal, discrimination and whistleblowing claims. She advises pre-claim and at all stages during the litigation process. Nicola is undertaking a regular secondment at one of the firm’s clients, working closely with the HR team.” Looking at the judgement it looks like the judge did not know she was also there.

Mr Kernohan said: “Employment Judge Postle has demonstrated the premature formation of a concluded view in the Claimant’s favour without properly considering representations from the Respondent and before the Respondent has been able to put forward its evidence.
…
“Employment Judge Postle’s inappropriate conduct, tone and disparaging comments towards the Respondent and its representatives, has crossed the line between what is tolerable and what is impermissible, to the extent that his comments would give an appearance to the fair minded and informed observer that there is a real possibility that the Employment Judge will carry into his judgment the scorn and contempt his words and behaviour convey.

“Employment Judge Postle has made unnecessary and inappropriate criticisms of the conduct of the Respondent and its representatives which he has expressed in absolute terms, which failed to leave open the possibility of him considering an explanation, despite not having heard or in some cases even invited evidence or submissions from the Respondent’s representative.
…
“Employment Judge Postle has allowed and facilitated inappropriate conduct of the proceedings by the Claimant’s representative, allowing such conduct to go unchallenged despite representations made by the Respondent or even, on occasion, failing to allow the Respondent the proper opportunity to
make representations.”

The judge asked Mr Neil Ashley, Mr Rennie’s counsel to comment and records it in his judgement

He told the court: “It is important that we are astute enough to identify that any evidence that such an Application made can be used as a device for a party which finds itself in difficulties because of the
quality of its case.
Mr Ashley went on to say that he has been practising for 24 years and he had never seen such deplorable conduct on the part of the Respondent’s Solicitors. He stated that rarely has he seen such a
‘car crash’ of a case presented before a Tribunal.
Mr Ashley went on to say that at the outset, the Tribunal was told by a Solicitor Advocate that there was no drafts of the Investigatory Report and none had ever existed. This was echoed audibly by
Miss Aslam, Solicitor.”

“Two Officers of the Court sat here and told the Tribunal that a 20 page perfectly polished Report had never been the subject of any drafting. This is absurd to the extreme and obvious to us all that it cannot be and no doubt Miss Whitely ( the board’s solicitor) made the statement recklessly and off the cuff without any thought to what she was saying. It was, to my mind, utterly untruthful.”

Miss Whitely did not want to make any comment to the tribunal, relying on Capsticks, to deliver the blow.

The judge and his two members of the tribunal then discuss the matter and unanimously rejected Capstick’s claims.

“There was no disparaging comments towards the Respondent or its Representative, it was simply a case of asking, what is happening about the third party Order for disclosure, concerns about prevarication, delay and the frustration of the Tribunal that the Respondent / its Representative, were doing nothing to advance the process in getting disclosure from the third party.”

The judge went on to be highly critical of John Webster, then director of strategic commissioning at the CCG, who reneged on a promise to allow Mr Rennie to leave and lied to him about the outcome. “Clearly, there had been a conspiracy all along going on behind the scenes,” The judgement stated the tribunal had “found him disingenuous, unconvincing”.

He was also critical of Mr Stavrinou.” Truth is alien to him.”

The successor body has now apologised to Mr Rennie. Mr Webster is now stepping down as deputy chief executive of the Cambridgeshire and Peterborough NHS trust.

Doctors who follow this blog will be interested in the role of Capsticks here – given they have also played a prominent role in recent whistleblowing cases – in Dr Chris Day’s case against Lewisham and Greenwich NHS Health Trust where 90,000 emails that could have helped him were destroyed by a NHS trust witness at the time of the hearing and in Dr Usha Prasad’s case where they initially tried to pursue her for £180,000 costs.

Unfortunately the judges in these cases sided with the trust and took no action over completely unacceptable behaviour or ignored evidence. We need more judges to take a stronger stand against Capsticks bullying tone as Judge Postle did in this case.