Orgreave rally being held in Sheffield tomorrow by the Orgreave Truth and Justice Campaign
Campaigners who have fought for years for justice following the infamous ” Battle of Orgreave” during the miners strike and the Hillsborough tragedy have convinced Labour to introduce a new law and hold a long demanded inquiry.
The decision, in the small print of the manifesto, to hold an inquiry into the 1984 “Battle of Orgreave ” where 6000 police fought striking miners picketing a coke plant, has been demanded for years by the Orgreave Truth and Justice Campaign and is now in Labour’s manifesto for the next Parliament.
The decision comes at a key moment when a new documentary on Orgreave will be screened at the Sheffield DocFest on Sunday. The director, Daniel Gordon of Strike: An Uncivil War, has wanted to make the film for a decade after seeing links between South Yorkshire Police handling of the strike and the treatment of families of the 97 Liverpool football fans who died when an overcrowded stand collapsed at Hillsborough in 1989. He gives an interview here to the BBC.
Any such inquiry is likely to be forensic into the police methods used against the miners. My own book on the miner’s strike, Marching to the Fault Line, written jointly with author and playwright Francis Beckett, points a finger at Peter Wright, then chief constable of South Yorkshire Police, who died in 2011, who after Orgreave, wrote a memo released to us under freedom of information, called for Arthur Scargill, to be prosecuted for conspiracy. The memo reached ministers but was blocked by the Director of Public Prosecutions for lack of evidence. Other very limited circulated memos, show that Thatcher, and Cabinet ministers Leon Brittan, Norman Tebbit and Peter Walker had drawn up a strategy in advance for this big confrontation with the pickets with Ian MacGregor , head of the Coal Board and Bob Haslam, chair of British Steel.
Labour’s decision to call for an inquiry has one extraordinary and unlikely precedent. Some nine years ago Theresa May, met with the Orgreave Truth and Justice Campaign, to set up such an inquiry.
As my blogreported then: “Theresa May agreed to meet an extraordinary delegation of Labour MPs, lawyers, ex miners through the Orgreave Truth and Justice Campaign ( see their website here) at the end of July and has agreed to accept a detailed legal submission from Mike Mansfield and three other distinguished barristers arguing for the case to set up an independent inquiry.”
This never happened because Theresa May’s successor as home secretary, Amber Rudd, blocked the inquiry.
Bishop James Jones – who chaired the Hillsborough Independent Panel Pic Credit: BBC
The other significant promise by Labour which could have wide ranging ramifications, is a long demanded implementation of the Hillsborough Law, sought after the independent panel inquiry by Right Revd James Jones, the former Bishop of Liverpool, which forensically examined the tragedy.
This would introduce a duty of candour for all public officials – similar to the professional duty for doctors in the NHS – and say they had to co-operate and assist any public inquiry investigation. It would also provide that taxpayers money will be available for the victims or the bereaved needing legal representation at any inquiry. Effectively this would provide a level playing field between the authorities – who are already funded by the taxpayer – and those who were affected by any future scandal. This has a widespread application – and would affect future inquiries into NHS failings and would have been extremely helpful to those at the Grenfell, Contaminated Blood, and Sub Postmasters inquiries.. Also it would make it very difficult for officials to try and conceal the truth as it would be against the law.
Given that Labour are under fire for producing a cautious and lacklustre manifesto in other areas I am surprised the party has not highlighted these changes. There are also plans to reform the House of Lords, strengthen the independence of the Prime Minister’s adviser on ministerial interests, curb MPs having second jobs and set up an independent Ethics and Integrity Commission. Why have we not heard more of this from Sir Keir Starmer?
It is becoming increasingly clear that neither the Tories nor the Labour Party have the slightest intention of offering any compensation to the 3.5 million women who have lost up to £50,000 by having to wait an extra six years to get their pension.
Rachel Reeves, the shadow Labour chancellor, has already ruled in advance of the party’s manifesto that there will be no money to pay them while Mel Stride, the outgoing Tory works and pension secretary, is hiding behind examining the paltry Parliamentary Ombudsman’s compensation for partial; compensation, while planning an extra £12 billion benefits cuts to hit the unemployed, sick and disabled.
Rachel Reeves Said: “I recognise that injustice. There are lots of things that a Labour government might like to do, but the state of the public finances and the dire need of our public services means that we won’t be able to do everything that we might like to do.
“Our manifesto will be published shortly, but I’ve said we won’t put forward anything that is not fully costed and we have not set out any money for this.”
Indeed if there is no money for them, will Labour decide there is no money for the contaminated blood victims and the much wronged Post Office sub postmasters or will the Conservatives still keep their pledge to both those groups as they have now promised a raft of tax cuts for the masses and the wealthy.
The answer why the 50swomen have been singled out is because politicians can do this due to the pathetically weak constitutional position of the Parliamentary Ombudsman in this country.
Rob Behrens, the outgoing Parliamentary Ombudsman, first wimped out of making a firm recommendation and left it to MPs and then issued guidelines that would give a maximum of £2,900 to people who have lost tens of thousands. He is now having a whirl of a time in retirement watching Premier League football and travelling the world and participating in conferences as a world leading elder statesman Ombudsman..
Nick Joicey, Rachel Reeves partner, was director of finance at the DWP during the judicial review
The truth is the main parties can dump the 50swomen because the law allows them to ignore any recommendation from the Ombudsman. Just as the Emperor had no clothes, the Parliamentary Ombudsman has no power. So MPs can make nice noises about the plight of the women, but they don’t have to part with the hard cash. The DWP was always opposed to any compensation and Nick Joicey – Rachel Reeves partner – was director of finance there during the Backto60 judicial review which the DWP opposed.
Angela Madden WASPI
This is exactly what has happened and I put part of the blame on Angela Madden, the leader of the WASPI group, who don’t claim they represent all women, and chose to go down the path of maladministration rather than litigation and have now been dumped by ministers because they know they don’t have to pay them anything.
She has now put up the white flag of surrender announcing that WASPI is closing down its crowdfunding campaign, having spent £500,000 from women’s donations, and achieved practically nothing. I see in a statement from WASPI it plans no further legal action and will just continue lobbying MPs in the new Parliament.
She says: “Unfortunately, that decision will not be made any time soon because Parliament is no longer sitting and no decisions with significant financial implications can be made in the pre-election sensitivity period known as ‘purdah.”
Mel Stride
CEDAWinLAW, the successor body to Backto60, which took the legal route by pressing for a judicial review only to be halted by a refusal of the male dominated Supreme Court, to consider the case, has also halted its legal proceedings to force Mel Stride to consider mediation because it couldn’t raise enough money and faced the danger of adverse costs from the DWP for challenging the minister.
As a result there is no legal action against the government even though the legal advice from CEDAWinLAW’s lawyers is that Mel Stride is acting unlawfully by refusing any mediation.
This all leaves the 3.5 million women who could be in a position to influence the general election result, with very little choice to cast their vote.
In Scotland they could vote Scottish National Party as Dr Patricia Gibson, has been a stalwart supporter of compensation for the 50swomen.
She said:” It has become clear that neither the current UK Government nor the incoming Labour Government has any intention of offering any redress or compensation to WASPI women, despite the fact that the Ombudsman’s report was damning about the way this rise in state pension age was undertaken. Neither the Tories nor Labour are willing even to accept the principles of the need for compensation, never mind the urgency, whilst one WASPI women dies every 13 minutes. This is truly shocking..”
She points out that Sir Keir Starmer, the Labour leader, had a law passed to secure his personal pension for life.
Other MPs you can support include Labour left wingers who support compensation and mediation to solve the issue. This includes the former Labour shadow chancellor, John McDonnell, and Ian Byrne, Mp for Liverpool, West Derby. In Northern Ireland you can vote for the Democratic Unionist Party who support compensation. Otherwise if you want to you can support George Galloway in Rochdale whose Worker’s Party support compensation for the women. In the rest of the cases it will depend on the individual.
All this is a very sorry end for all the women. who have tirelessly campaigned for years. But Britain’s reputation has been damaged abroad particularly in the United Nations. The UN Convention on the Elimination of All Forms of Discrimination against Women which Lady Thatcher signed nearly 40 years ago has not been properly implemented in this country and it has taken a keen interest in the plight of the women. Its committee recently decided that Professor Shazia Choudhry, the UK’s nomination to sit on their committee, failed to get elected.
There also will be a permanent historical record of the failure of the main parties to find any compensation for the women and it will remain a blot on the reputation of this country for natural justice and fair play.
John Webster : NHS executive criticised by employment judge
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 – Capsticks
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.”
Marsha Robinson and Neil Ashley of Paladin pic credit: East Anglia in Business
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.
Cabinet Office – 70 Whitehall Pic credit: Wikipedia Commons
The day after Parliament went into recess a damning Public Accounts Committee report exposes why Whitehall like the National Health Service has such an appalling record in dealing with whistleblowers.
The Cabinet Office, the ministry at the apex of power and responsible for co-ordinating all government policy should be interested in improving public service is turning a blind eye to any concerns that are raised by whistleblowers when things go wrong.
The Cabinet Office is supposed to collect data on whistleblowing across Whitehall but the report reveals it is making remarkably slow progress in doing so.
The report says: “There are some key metrics missing, such as data on “ongoing cases” and the length of time an investigation takes, making it difficult to understand whether cases are taking too long and why that might be the case. “
“The current data collection also does not ask for data on the treatment of whistleblowers which would help indicate whether whistleblowers are being treated fairly. Furthermore, some of the existing data collected lacks detail, for example the data shows that less than 5% of investigated concerns lead to changes in policies or procedures which suggests a lack of action is taken in response to concerns.”
40 per cent of Whitehall whistleblowing cases are about fraud
It goes on: “there is a lack of data analysis and sharing of insights regarding whistleblowing across of the civil service. The Cabinet Office does not utilise its central position to analyse the cross-government data it collects. It appears that 40 per cent of the whistleblowing cases involve fraud “but there is no further detail beyond this categorisation so the Cabinet Office do not understand why this is the case.”
“A ‘speak up’ environment is not yet embedded throughout departments to encourage people to comfortably raise concerns. There are still negative perceptions of whistleblowing which can create barriers to achieving the right environment for speaking up. The annual Civil Service People Survey in 2022 had a median organisational score of only 52% of people agreeing they ‘think it is safe to challenge the way things are done in my organisation’. So nearly half think it is not safe.
The report says the Cabinet Office and other departments do not seek feedback from whistleblowers and so are missing vital insights into the effectiveness of the process.
“We have seen no clear indications that any departments routinely seek feedback directly from whistleblowers. Some feedback can be given to departments through their Nominated Officers (senior members of staff who are nominated to receive and consider concerns), but it is not collected in a formal or systematic way for it to be informative and there are limitations with anonymous whistleblower.”
The report calls for a radical shake up across Whitehall with a serious approach from the Cabinet Office to monitor what is going on.
Ray of Hope
There is one ray of hope from one organisation that worked with the National Audit Office and obviously takes whistleblowing seriously – that is the Maritime and Coastguard Agency which is principally concerned with safety at sea and environmental protection. It is a Department for Transport agency. In evidence to MPs it has developed a strong whistleblowing policy and takes cases from both staff and members of the public including ships crew.
A fishing vessel Pic Credit: HM Coastguard UK
The external cases were mainly categorised under danger to the environment or health and safety related issues. These cases included safety of vessels in UK ports, failure to meet the obligations under the Maritime Labor Convention (noise and rest hour disturbance), untrained ship crew and fraudulent issue of seafarer competence certification.
Unlike health trusts the anonymity of whistleblowers is protected throughout theinvestigation and their names kept from the board of the agency.
The evidence says: “A recent example of protecting the identify of a whistleblower was following a report of health and safety concerns in relation to coastguard rescue equipment in one location. In order to protect the identify of the whistleblower the health and safety investigation manager reviewed equipment at more than one location. Similarly where there have been reports of potential travel and expense claim and government procurement card irregularities, spot checks across several employee claims have been undertaken to avoid identifying the whistleblower.”
As a result last financial year there were 34 whistleblowing investigations – 27 from staff and seven from members of the public.
“The internal cases during 2023-24 covered breaches of the civil service code, conflict of interest, recruitment irregularities, possible fraud, Health & Safety, Safeguarding of employees, Security breach, misuse of official position/ influence by improper pressure, GDPR breach and offer of a bribe. Of the 27 cases, four were not classed as Whistleblowing but “Speak Up” and were referred to MCA HR.
“The external cases during 2023-24 were health and safety issues on passenger vessels, potential security/ GDPR breach by an MCA contractor’s employee, security/environmental issue referred to the Joint Maritime Security Centre, a referral to the National Crime Agency and a modern day slavery report transferred to the appropriate authorities via Gov.Uk”
This appears to be exception rather than the norm. But it shows that if whistleblowing was taken seriously in Whitehall and the NHS far more serious safety issues could be investigated and fraud stopped. This lack of interest in whistleblowing – and the negative attitude towards doctors who report patient safety issues in the NHS – is a nasty blot on our public services. It does nothing to protect the public either.
After years of waiting for compensation for maladministration and discrimination some 3.5 million 50s born women have been left in limbo yet again even for the paltry sums of up to £2900 compensation recommended as a guideline by Rob Behrens, the former Parliamentary Ombudsman.
The explanation given by both Mel Stride and Rishi Sunak any time they are asked by MPs is that the Ombudsman’s report is so complicated that they will be spending an age to study it. They keep citing that it took Rob Behrens five years to write, deliberately ignoring that the Ombudsman unnecessarily paused his work for nearly two years while the Department for Work and Pensions was facing a judicial review over discrimination from Backto60 – now CEDAWinLAW.
DWP
In fact their excuse – which was never strong to start with – is rapidly wearing thin. The truth is that civil servants have had months to study the likely outcome of the Ombudsman’s report since it is not much different from the draft report he circulated – and was leaked on this blog – over 18 months ago..
And the Ombudsman knew that civil servants at the DWP then did not believe they had put a foot wrong and rejected any suggestion that there was any maladministration at all. Indeed their draft reply – also leaked on this blog – had the temerity to suggest that these women were a load of fraudsters who would put in fake claims so they certaInly should NOT get any compensation.
What is becoming clear to exasperated MPs whether on the Commons Work and Pensions Committee or the Public Administration and Constitution Affairs Committee is that the government have no intention of naming a date when they will reply. And the government know they do not have to implement the Ombudsman’s paltry findings because the law allows them to ignore or reject any recommendation from the Ombudsman.
As Jackie Doyle Price tweeted as the new Tory chair of PACAC : “We are extremely disappointed that the Government is unable to tell us when it is planning to respond to @PHSOmbudsman‘s report into the communication of state pension age changes to #50swomen.”
Indeed are the government going give them any money at all – just issue an apology. That is what Ben Wilkinson, the Telegraph’s head of money said in an articlerecently and it is echoed by the private pensions industry which was always opposed to the women getting any compensation. And there are signs that some Tories such as Samuel Kasumu, Boris Johnson’s former special adviser, think the same – though their MPs are wary of alienating 50swomen in case they lose even more votes at the next General Election.
Sir Keir Starmer Pic Credit: Chris McAndrew / UK Parliament
Labour are not much better – the party leadership abstained on a Scottish National Party motion- calling for compensation suggesting Sir Keir Starmer is not keen either. Many Labour backbenchers take a different view and have raised the issue of how unfairly the women have been treated.
What is also missing is a more rounded debate. It is centred – no doubt by Higginson Strategy, lobbyists for WASPI, solely on the demands of WASPI which seems content to accept the Ombudsman’s recommended findings.
The debate pushed by CEDAWinLAW for an alternative solution – mediation with Mel Stride, the work and pensions secretary , has been ignored by too many MPs. This too involves a compromise but Mel Stride is not playing. CEDAWinLAW’s lawyers judged it was unlawful of him not to agree to this. And it is pity through not having enough funds to go through the case and the threats of adverse costs by both the DWP and, at one stage, Waspi, that this could not go to court. Waspi. didn’t support any mediation either. Mel Stride has still to reply again to a letter from CEDAWinLAW’s lawyers.
CEDAWinLAW has asked the UN CEDAW committee in Geneva to open an inquiry into the government’s handling of this. If they do the Government will face international criticism and the UK’s reputation for fairness and treatment of women in society will be further damaged.
In the end the government know that by remaining silent they can delay this as long as they like. But ministers should be careful. Although a number of the women are now dead, there is still a sizeable number who could take their revenge on the government through the ballot box. And time is also running out for the government when they have to call a general election.
Yesterday a conference of doctors, patients and journalists held at the prestigious Royal Society of Medicine in London highlighted the appalling treatment of doctors by NHS management who raise patient safety issues to protect patients. Examples were given from doctors who had been dismissed after they raised patient safety issues and how trust managers spend unlimited funds on lawyers to make sure they lose employment tribunal cases, sometimes even aided by the judges hearing them.
The conference arranged by Justice for Doctors, a new organisation representing many of the affected doctors, coincided with a series of articles in The Daily Telegraph, which showed that these are not isolated cases but involve doctors right across the country and is a national problem which trusts are trying to hide.
One of the main organisers is David. E. Ward,, a retired cardiologist from St George’s Hospital, South London, who has already written two guest blogs on this site. I have included his planned closing statement to the conference as a fresh blog from him as it succinctly sums up all the issues that were raised.
By David Ward
First, I would like to thank all the contributors to this historic meeting. In a way it is a celebration of all those oppressed whistleblowers who have spoken up for patient safety.
I would personally like to thank my friend Professor Somerville who has been a driving force behind this and many other ideas to stand up for whistleblowers. Jane and I have been trying to set up a second meeting about Patient Safety for 5 years following the first one in March 2019 when we re-enforced our personal campaign to expose – and do something about – the appalling treatment of doctors who speak up for patient safety also known as ”whistleblowers”. During our campaign we met the Justice for Doctors group who helped to organise this meeting
In the past 3 decades a Hospital Trust with its senior management has accrued the powers to destroy a doctor’s career by imposing restrictions, suspensions, referrals to regulators (GMC, CQC) and, astonishingly, an unfettered power to dismiss. These major life-changing decisions are arbitrary and undertaken, incredibly, without any independent or regulatory oversight. For dismissal, “get out” is apparently sufficient.
Allegations against the victimised doctor may be based on made-up and unsubstantiated claims. If major criteria for dismissal cannot be met there is always the “loophole” of “some other substantial reason” which conveniently does not exclude but also does not mandate any additional explanation.
Doctors who see poor practices, faulty equipment, processes (and the like) are obliged to speak-up by Duty of Candour (HSCA 2008 reg 20). But by speaking up but they may put their careers at risk as we have seen so many times recently.
The “The National Guardian” program introduced by Sir Robert Francis and intended to accommodate doctors who speak-up, evidently does not function as intended. It’s called “marking your own homework”.
Investigations into a whistleblower together with their concerns should be independent of the Trust in which they work and be seen to be so. But evidently, they are not. Furthermore, the Trust managements who make these decisions are themselves unregulated. That doesn’t seem right? Does the phrase “judge, jury and executioner” come to mind? Managers should also be regulated, shouldn’t they?
Arcane procedures such as MHPSappeal hearings can be overseen or conducted by “dodgy” external “agencies” some of which claim spurious credentials. These agencies are, in effect, “hired guns” available and willing – for a fee – to “confirm” the Trust’s unfounded allegations and to assist their aims – to dismiss the “troublemaking” doctor; not because of “incompetence” but because the doctor has “annoyed” Trust management by raising concerns about Patient Safety or something else. The reactions of management are often vengeful, as we have seen.
I know of at least one of these agencies which has appropriated and misunderstood (in a written formal report) the phrase not “fit-for-purpose” to describe a doctor in support a Trust’s decision to dismiss. The agency seemed totally unaware that this is not only fictitious nonsense but possibly libellous. No such phrase exists in English Employment Law. Unfortunately, NHS England has also been duped. I know because I’ve asked – in person.
The Judiciary, in the form of Employment Tribunals may be called into action if the dismissed doctor seeks to restore their career via this route. This is a bad choice by the victim as the evidence confirms. Only 3% of Claimants, “win” – not the most apt word – in this system. Put another way, 97% lose! Is that “open and fair justice”? I think not. Some of the judgments are beyond comprehension.
There are many practices which seem grossly unfair, perhaps deliberately. Some obvious ones stand out:
1. Inequality of arms;the law firms acting for the dismissing Trust are funded by each of us – the taxpayer. The Claimant, the doctor, healthcare worker will have no external source of funds except perhaps by “crowdfunding”. Furthermore, if they lose their case, they may required to pay not only their own legal fees but the law firm’s fees too! That’s not fair. I can show you some law firm invoices which would shock you. The phrase “inequality of arms” doesn’t touch it.
2. “Cost threats”are a notorious device employed to, shall we say, “persuade” a claimant to withdraw their claims before, during or after a Tribunal. It’s another weapon deployed by the Respondent, the dismissing Trust, to force the claimant to surrender and withdraw their claims.
3. Non-disclosure agreements or NDAs,are devices designed to conceal the devious practices used to threaten the claimant (and, as it happens, to suppress evidence). They have no place in inquisitorial proceedings in this context. They should be banned.
4. The Public Interest Disclosure Act (PIDA) 1998; I quote: a worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.
In other words, a doctor cannot be dismissed, for example, for raising patient safety concerns. So, any dismissal has to be attributed to another perceived misdemeanour. Read any recent case and it is evident that the “whistleblowing” or “patient safety” concerns were discounted and irrelevant to the dismissal. It was about an “attitude”, a “manner of speaking” and similar unquantifiable and, in most cases, unverifiable attributions. Ask one of the presenters today.
5. At a time of great need for medical expertise, doctors are still being persecuted and dismissed having committed NO offence. The law firms which spend so much public money to pursue the claimants should have no place in any procedures which are primarily about patient safety. Furthermore, the concerns and the person who raised them should be formally registered and documented, including all steps taken towards a solution. This is not happening. Doctors who raise concerns about patient safety are treated like criminals! This must stop!
6. Last but not least the patient safety concerns, the very things that trigger most of these shenanigans. What happened to those? Well, they get buried and forgotten don’t they. What a wonderful system. All that waste of public funds to destroy a doctor’s career instead of correcting potentially dangerous practices. That is why a register is needed.
The problem is a nationwide one of the same gravity as the “Great Post Office Scandal”. Perhaps NHS whistleblowers need a TV drama-documentary because we have seen how that shifts public opinion and awakens the media with unprecedented force. I’ve already draw up a potential cast list!
Last, there should be a searching, durable, logical and legally sound review of the treatment of ALL whistleblowing related laws and processes. Whistleblowers are the canaries in the coalmine. They do society a favour. They should be praised – not persecuted.
This is the 21st century! What country do we live in?
Thank you all for attending. Thank you to all those who presented. And particular thanks to Dr Salam Al-Sam, Dr Azhar Ansari and the Justice for Doctors group.
UPDATE: Who came and Who didn’t send anyone
Newspapers who sent a reporter: Times, Guardian, Daily Mail, Standard,
Major media who sent a reporter: Sky News
Major media one would have expect to send reporter:
BBC, ITV, GBNews, LBC
Major regulatory professional bodies who were notably unrepresented: (very bad show I think especially as some of their members Fellows were major subject dig the WB scandal). If they didn’t know or just couldn’t be bothered – it’s shameful, either way!
BMA, CQC, GMC, Royal Colleges (all of them, Physicians, Surgeons, Obs and Gynae), National Guardians Office (FTSUG), HMCTS (at least they could have send a junior barrister), Law firms; all those with an obvious interest in oppressing Claimants
One aspect of the second recent cost hearing against whistleblower and human resources consultant Alison McDermott by Sellafield and the Nuclear Decommissioning Authority which was not covered is the cost to the public and us the taxpayer.
During the hearing Deshpal Panesar, KC Sellafield’s lawyer from Old Square Chambers, rather pompously told the hearing that the fact Sellafield was claiming £20,000 off Alison was ” to protect the public purse”. He and the Nuclear Commissioning Authority which was also claiming £20,000 made a huge point that her “unreasonable behaviour” by pursing them at a tribunal meant she should pay a penalty.
What is now emerging from Freedom of Information requests is that the cost to bring this action far outweighs the money they will receive even if they are 100 per cent successful.
Both nuclear giants have already spent a huge sum – nearly £700,000 of taxpayer’s money – fighting Alison, whose consultancy was terminated, after her report revealed bullying and fear among staff at the nuclear site in Sellafield.
Alison McDermott
Now it is known from FOI that both organisations have spent £59,000 between them on preparing the case for the second hearing on top of money they had already spent for the first costs hearing. This doesn’t include the cost of hearing itself which is about another £20,000 considering Sellafield’s lawyers Deshpal Paneser. KC charges £5500 a day for the hearing and Emma Mills, from DLA Piper, who charges £3000 a day . The NDA employed another barrister, Rachel Levene and solicitors Pinsent Mason. Plus there were paralegals at the hearing.
Now one would think that after a High Court judge had ruled that the first costs decision was ” unsafe” and said his view should be taken into account by judge Stuart Robertson, who has heard the second hearing, there would be pause for thought. Both nuclear organisations are also lucky they will not face an appeal. So any sane organisation would decide to leave it there.
Instead we have the economic madness, which no commercial company conducting a risk assessment would follow, of throwing more money at bringing a second case when there is not the slightest chance of getting their money back. Indeed even if they were 100 per cent successful they stand to lose £40,000 and that is by no means certain they will get that. It is only that it is our money from the taxpayer they can throw it around like confetti.
So why are they doing it? The decision must have been endorsed by Euan Hutton, the new chief executive.
Despite previously serving as a Mental Health Champion alongside Ms. McDermott to foster a kinder and more supportive work environment, Mr. Hutton is now relentlessly pursuing costs against her.
In various YouTube videos, Mr. Hutton espouses the importance of treating people with kindness, yet his actions towards Ms. McDermott are anything but. He actually says that “kindness is putting in the time to think about how different people act differently, that’s what kindness is all about” [second video from 20 seconds onwards]. By hounding her for costs related to her whistleblowing for the second time, he has subjected her to immense stress and anguish, betraying the values he once claimed to champion.
Now Sellafield receives £6.7 million daily from taxpayers. Mr. Hutton’s decision to waste these funds on a vindictive legal battle against a whistleblower is an egregious misuse of public money. It is a slap in the face to taxpayers who trust Sellafield to use their contributions responsibly.
The Guardian has reported that the National Audit Office will investigate Sellafield’s substantial expenditure.
Mr. Hutton should be held accountable for his actions, which have caused harm to Ms. McDermott and undermined Sellafield’s commitment to employee wellbeing and to a culture of openness.
But perhaps this is the real reason for using public money in this way is to silence anybody else who might be thinking of exposing the dark secrets inside Sellafield. She is not the only whistleblower.
I approached Sellafield and the NDA about this waste of money but both said
“These issues are still subject to legal proceedings. We cannot comment further at this stage.”
As reported on this blog earlier this week, the confrontational, five-and-a-half-year whistleblowing litigation between equalities adviser Alison McDermott and Sellafield and the Nuclear Decommissioning Authority last week featured a one-day costs hearing at Leeds Employment Tribunal, even though an earlier costs award against Ms McDermott had been ruled as unsafe by the appeal court in London. The aim of this article is to point to the public interest in matters at the heart of this case that have been treated lightly by the presiding Tribunal judges, and ignored by the two defending organizations (Respondents).
Alison McDermott
There have been strong, conflicting claims on both sides throughout the case, many of which related to the way in which litigation was conducted. These were the subject of last week’s hearing. The two Respondents were represented by KC Deshpal Panesar, for Sellafield, and Rachael Levene, for the Nuclear Decommissioning Authority, hired by the law firms DLA Piper and Pinsent Masons respectively.
Deshpal Panesar KC
In her address to the court, Ms McDermott reminded us of the public interest in her original report from 2018: the workplace culture at Sellafield. In her address, Ms McDermott reported that just 11% of people on the site strongly agreed that they could speak out without fear of reprisal. I have seen employee opinion surveys from the site. The scores for the prioritization of safety as an issue are significantly higher than the scores for ability to speak out, indicating a serious gap between formal policy and managerial practices. This matters especially on a nuclear site.
Mikhael Gorbachev. Pic credit:BBC
Nearly 40 years ago, following the accident at the Chernobyl reactor in Ukraine, the then leader of the Soviet Union Mikhail Gorbachev recognized that a climate of fear both made such accidents more likely and delayed a proportionate response. He instigated a policy of glasnost – freedom to speak up – as a direct consequence. This intuitive conclusion by Mr Gorbachev has since been vindicated by numerous workplace studies, which show that workplaces with low engagement and higher levels of fear are statistically more prone to accidents (the Gallup survey cited in this report, for example. the link is Engaged Workplaces Are Safer for Employees (gallup.com)). When I was talking with a press officer from the Office for Nuclear Regulation three years ago, in relation to the Ms McDermott case, he was unaware of this link, and assumed workplace culture and safety issues to be separate categories.
Rachel Levene
Rachael Levene, barrister for the Nuclear Decommissioning Authority, appointed by Pinsent Masons, last week claimed that Ms McDermott was not a whistleblower, and not entitled to protection from detriment under Section 47(B) of the relevant legislation. This was a narrow legal argument, while members of the press and the public can observe that Ms McDermott’s central claim of a bullying and toxic culture and an HR leadership that was not on top of the issues, have been the conclusions separately made by several authoritative sources: A report by PricewaterhouseCoopers, commissioned by the Nuclear Decommissioning Authority, The BBC, in an investigation reported in March 2021 (as a declaration of interest, I referred this story to the BBC), Link:Sellafield nuclear site a ‘toxic mix of bullying and harassment’ – BBC News: The Guardian, in a report in December 2023, link Sellafield nuclear site workers claim ‘toxic culture’ of bullying, sexual harassment and drugs could put safety at risk | Energy industry | The Guardian The Nuclear Decommissioning Authority’s own representatives, speaking under oath at the main hearing on 29 June 2021, agreeing with the PwC report’s conclusions that the HR function was ‘not fit for purpose’’, praising Ms McDermott’s contribution and expressing surprise at her sudden departure, as reported on this blog at the time. Link: Nuclear industry leaders contradict each other in landmark whistleblowing case | Westminster Confidential (davidhencke.com)
This evidence was missing from the 2021 Tribunal ruling that found against Ms McDermott. There is no transcript available at an Employment Tribunal, which hampered her appeal. I attended that day and have short-hand notes. There is a significant public safety risk attended to last week’s hearing. Sellafield’s management were making a very public declaration that if someone dares criticize them, even if they have a strong case, sufficiently well founded to reach the appeal court which reached a balanced verdict, they risk having their professional reputation trashed and suffering the threat of a life-altering financial penalty (the Respondents have bid to claim a total of £40,000 from the Claimant). It is likely that those low levels of freedom to speak out will have fallen even further following last week’s hearing. The principal tactic of the Respondents has been to promote a pejorative narrative about the claimant, largely based on her response to their own legal tactics. For example, from Mr Panesar we heard him say that Ms McDermott had made a false complaint of fabricated evidence being used against her, in a claim that was then dropped on the eve of a hearing, and that this was unreasonable behaviour.
Sellafield letters unlawfully processed on personal computers – ICO
From Ms McDermott, we learned that the evidence in question consisted of three letters purporting to complain about her conduct while working at the Sellafield site. This evidence was not presented at the beginning of litigation. At the point of her dismissal, she was informed that the sole reason for termination of her contract was financial – an explanation also given to the governing body. After Ms McDermott discovered that some £17 million had been allocated to work of a similar nature, the Respondents switched to one of competence, admitting it had lied about the initial reason. The three letters only appeared one year later. The letters were produced on personal PCs, contrary to company policy. They were later found by the Information Commissioner’s Office to have been unlawfully processed, in contravention of data protection law (Judge Lancaster wrongly described the ICO ruling as mere criticism in the 2021 tribunal ruling.)
When restored, the metadata showed that the document had been open for three hours at the point of its creation, during which time phone records showed that the author took a long phone call from the HR director Heather Roberts, the third Respondent in the case. The focus by Sellafield’s lawyers last week on the style of whistleblowing or protests made by Ms McDermott, ignoring or downplaying their substance, is straight from the anti-whistleblower playbook. It has been used by several NHS trusts to discredit medical professionals raising safety concerns – several of whom were watching last week’s proceedings in Leeds, either in person or by remote link.
Quite how such tactics have come to be regarded as acceptable by Tribunal judges is a matter of concern, and is likely to come under scrutiny now that the NHS Whistleblowers’ Group, numbering some 1,600 individuals, has been invited to assist the Thirlwall Inquiry into the Lucy Letby case. Sellafield’s lawyers and press officers will point to the 2021 ruling which found in their favour – a judgement that got the ICO ruling wrong, ignored swathes of evidence and multiple failures of disclosure by the Respondents. There is a term in football: the ugly win. Sellafield et al won ugly. But this is not football, and the ugliness is a much bigger story than the win.
Alison McDermott, a human resources and diversity consultant, was back at a tribunal last week fighting a second attempt by Sellafield waste facility and the Nuclear Decommissioning Authority (NDA) to demand costs after she brought a whistleblowing case against both of them.
The consultant was sacked by Sellafield after she compiled a report at their request which revealed bullying at the plant and since then has faced a tribunal and an appeal tribunal before this fresh action bought by both nuclear bodies. She lost the first tribunal heard by judge Lancaster who originally ordered she should pay the £40,000 costs. But an appeal judge Auerbach overturned the costs order as ” unsafe”,
This week both bodies decided to spend more taxpayers’ money and appeal the judge’s order to ditch the costs. If Sellafield succeeds it will recover just six per cent of the huge lawyers fees both bodies had paid to pursue her for years.
The hearing opened with a blistering attack on her by Sellafield’s lawyer, Deshpal Panesar KC, Of Old Square Chambers who is paid £5.500 a day, effectively said that everything Alison McDermott said , including her whistleblowing detriments was a ” baseless lie”.
He told the tribunal she had made “baseless claims of the most damaging sort, representing an existential threat to the careers of multiple public servants, based on multiple untruths”. Indeed so strong was his attack that a person who overhead part of the proceedings thought I had tuned into the Old Bailey and was hearing the denunciation of a convicted criminal.
Rachel Levene
Rachael Levene, representing the NDA, said Ms McDermott had “acted unreasonably” by involving the nuclear body in the case at all. She claimed that the body, which works closely with Sellafield, was not involved and Ms McDermott should have known that because of all the evidence it produced. Given that the body had failed to extradite itself from the tribunal in the first place, this seemed to me rather a chilling attitude to take as it suggests that claimants should be blamed if they bring a case at all.
The NDA then raised that it had offered £160,000 to settle the case – even though it was arguing at the same time it should not have been involved in the first place – but this had been rejected by her. Ms McDermott has said that she did not settle the case over the money but over a point of principle to raise the issue in a tribunal. She also said that judge Lancaster had refused herself and her husband’s request to contest the NDA’s version of what happened at the meeting when the offer was made.
Sellafield
Alison McDermott countered arguments by Deshpal Panesar by pointing out that the appeal judge had ruled that the costs had been ” unjustly awarded ” and questioned his assertion that she was not a whistleblower by pointing out that the appeal judge decided she was and that judge Lancaster’s tribunal had erred in its judgement on two disclosures.
She also pointed out that she had pressed repeatedly for mediation to solve the dispute but this had been rejected and also that both sides had decided to spend hundreds of thousands of pounds on expensive lawyers when they had big human resources and legal departments, over 100 at Sellafield, which could have handled the case.
Moral obligation to scared staff at Sellafield- Alison McDermott
She told the judge :”I was brought in to do a job and I did my job. I felt a deep moral obligation to the people I was speaking to who were telling me how scared and stressed they were by the culture at Sellafield.”
She said she was told by Lesley Bowen, a senior HR Manager, at Sellafield that she was let go for financial reasons. Ms McDermott asked if there were any other reasons and Lesley Bowen confirmed in writing that it was purely down to financial constraints. But after Ms McDermott found out they had spent £17 million awarding HR contracts they changed their tune and said they had lied to her and that they were really letting her go due to performance concerns. Which is odd as they had just rehired her, according to Ms Bowen, due to her excellent past performance working across Sellafield and the NDA.
At an earlier tribunal she had felt she had been treated by Mr Panesar equally badly during cross examination
She told me:” I found he transgressed professional boundaries and went further and took no account that I was vulnerable to such criticism. “Over many days he accused me of being “motivated by spite,” “self-serving,” “self-absorbed, “wholly intent on chasing a windfall”, “seeking to ruin the reputations of HR staff at Sellafield” and even “acting out of revenge” .
She also disputed any idea by submitting a Freedom of Information request to obtain information that had been withheld by Sellafield and the NDA amounted to ” unreasonable behaviour.” These included information that both Sellafield and the NDA has spent £670,000 between them on lawyers and the NDA has just spent another £45,00 on prelimary legal work to recover £20,000 from her.
She pointed out that she and a witness on her behalf, another whistleblower at Sellafield, Karl Connor, had experienced ” unremitting stress” from the management at Sellafield.
She concluded: “The Tribunal is implored to recognise the substantial challenges the Claimant has faced in bringing this whistleblowing claim which has now been ongoing for 5.5 years. The Claimant asks the Tribunal to affirm whistleblowers’ vital role and prevent further harm or costs to the Claimant. The significance of not penalising whistleblowers is particularly acute in the context of Sellafield Ltd, a nuclear facility where the potential consequences of unchecked wrongdoing could be catastrophic.”
Judge Stuart Robertson reserved judgement which will announced later.
Dr Usha Prasad, the whistleblower cardiologist sacked by the Epsom and St Helier University Hospital Trust, was back at an employment tribunal yesterday to fight for a hearing that she had been unfairly dismissed.
The public hearing was delayed for nearly two hours because 400 pages of legal papers from the trust could not be immediately accessed to be read by the judge. So both sides spent three hours presenting oral evidence instead.
The successor trust, St George’s, Epsom and St Helier Hospital Group, is seeking to strike out her case saying a decision at a previous tribunal by Judge Hyams-Parish, which came down in favour of the trust over her claims of discrimination, victimisation, harassment and whistleblowing meant it should be the end of the matter.
Miss Rehana Azib, QC, for the trust argued that her dismissal was the consequence of the failure of her claims and there was no need for a further hearing.
To add to the confusion in the day Dr Prasad said a decision that the case should go ahead had already been taken in September 2022 – more than 18 months ago. . She said Judge Balogun had already rejected an attempt by the trust to strike out this further hearing and ordered that the case will be listed for a case management hearing for 2 hours and a separate full hearing listed for 3 days. “
She was told by the present judge that this ruling had been reconsidered by the judge. However it is extraordinary that Miss Azib excluded the letter saying the trust’s first strike out was unsuccessful from the trust’s bundle for the hearing. Dr Prasad had received no notice that this had been changed but yesterday’s hearing still went ahead.
Rehana Azib KC: Pic credit: Keble College, Oxford
Miss Azib, KC from 2, Temple Gardens Chambers, based nearly all her entire case against Dr Prasad on Judge Tony Hyams-Parish’s judgement. She also tried to extricate Jacqueline Totterdell, group chief executive of the trust, from the case brought by Dr Prasad by arguing she was not chief executive at the time at the time of her dismissal. She has however continued to authorise lawyers to pursue Dr Prasad. There followed an argument that her post represented the main body of the trust. Ms Azib told the judge that to bring a case against her personally rather than the trust would cause her stress and be time consuming from her other duties.
I covered the Hyams- Parish judgement at the time. My blog on his judgement is here.
Judge Christina Morton
The most dramatic part of the hearing came when Dr Prasad, challenged by Miss Azib’s statement that none of actions by the trust were judged by Hyams-Parish to have been connected to her whistleblowing claims, produced a stream of examples.
This included an attempt by Dr. James Marsh, now group deputy group chief executive, to water down her whistleblowing report on the ” avoidable death ” of heart patient, Mr P, which the trust confirmed at the Hyams-Parish hearing had never been reported by Richard Bogle, head of cardiology to the coroner or the Care Quality Commission. Her refusal to do seemed to lead to her internal disciplinary hearing..
She pointed out that there was no independent expert at the hearing to examine the case against her, all the people were colleagues of Dr Marsh and his wife in both NHS and private practice. A list of what turned out to be vexatious cases of her failures sent to the General Medical Council by the trust was compiled by Dr Marsh’s close colleague. They were thrown out by the GMC who exonerated and revalidated her to work anywhere in the UK. Judge Hyams-Parish did not want to see their report.
The most telling example was an email from the then chief executive of the trust Daniel Elkeles, offering to abandon the internal disciplinary proceedings against her if she dropped the tribunal case against the trust which contained the whistleblowing claim. He would help to revalidate her so long as she left the trust.
She also pointed out that she was banned from any clinical duty and told to stay in the office for 28 months before the disciplinary hearing and her dismissal. Since she saw 2,000 cardiology patients a year, this meant that the NHS – which was also hit by the pandemic- was depriving thousands of patients seeing a consultant whom the GMC had judged was perfectly competent to do her job.
As you will see in my contemporary blog on the Hyams-Parish judgement I noticed the judged ignored the plight of Patient P and the evidence of the letter from the chief executive to her at the time
She also accused lawyers for the trust of witholding information and misleading previous court hearings – particularly not revealing that when she could not attend a hearing the text of a doctor’s letter explaining why. The respondent’s lawyer also told the judge that Dr Prasad hadn’t submitted ” any particulars of her claIm” over this case yet she had submitted them to the respondent last April. She also didn’t tell the judge Usha’s detriment case had been listed for an appeal.
The accusations led Miss Azib to remind the judge that serious allegations had been raised in ” an open hearing.”
I got the impression that the lawyer and the judge would have much preferred this hearing to have been held without the public and the press being present. It is a good example of why there ought to be more coverage of what happens at employment tribunals.. The judge is reserving judgement.
Facts surrounding the case
The trust has engaged and paid 33 lawyers to pursue Dr Prasad over the last six years at a cost of hundreds of thousands of pounds to the taxpayer.
Nearly 10,000 NHS cardiology patients in South London and Surrey have been deprived of being treated by Dr Prasad while she was restricted from doing any clinical work.
Westminster Confidential 