Whistleblower Usha Prasad ordered to pay £20,000 costs in hearing held in her absence

Posted on November 21, 2023 by davidhencke

Nadia Motraghi KC – from Old Square Chambers, barrister for the Epsom and St Helier NHS Trust

Judge rules her case had ” no prospect of success” and she was ” unreasonable ” to pursue the claim

UPDATE: The figure was amended when Usha received the judgement from exclusive of VAT to including VAT – that reducing the total figure to be paid to £20,000 instead of £24,000.

Employment Judge Ms EJ Mclaren today ordered Dr Usha Prasad to pay Epsom and St Helier University NHS Trust £20,000 in a hearing she did not attend due to ill health which had not been accepted by the tribunal.

The decision is a pyrrhic victory for the trust, Capsticks solicitors, and a barrister, Nadia Motraghi, from Old Square Chambers, who had originally sought to claim £150,000 but had their claim reduced to £20,000 – the maximum that can be charged in a summary hearing. Much of the money will be swallowed up in fees charged to the trust by lawyers, Nadia Motraghi, and Capsticks solicitor Jessica Blackburn, who have already made nearly £100,000 between them from pursuing Dr Prasad on behalf of the trust. See my blog on the paper submitted by Capsticks to the tribunal here.

The handling of this case in my view is yet another example of why employment tribunals are totally unsuited to investigating whistleblowing cases.

For a start two judges have taken totally different views of whether Dr Prasad was fit to plead. Judge E J Baker basically decided that a doctor’s note was not good enough to prove she was ill. But only last month acting regional judge Katharine Andrews decided on a fresh doctor’s note to cancel another hearing involving the trust on the grounds that Dr Prasad needed a long rest and should not face any hearing until next April. It makes judicial decisions by non medically qualified judges seem like a lottery. This of course was not mentioned by Nadia Motraghi in the hearing as it would have undermined her client’s case.

Second the inequality of arms in these hearings. Dr Prasad has already spent a small fortune on lawyers in some of the hearings. So I know she decided she would not be represented by a brief at this hearing because if she lost it would cost her nearly double the cash -nearer £40,000. For the trust unlimited taxpayer’s funds can be spent on lawyers and it is not their money. Not bad for a trust that is already in financial difficulties – just cancel a few operations instead. I also note other lawyers offer a capped fixed fee if a private company is bringing a complex case against an employee – otherwise they would not get the business.

So it is rather hollow for the trust to claim as the judge solemnly pronounced – this is a big cost to a public authority caused by a case ” which had no prospect of success”. It is a big cost because the trust deliberately chose to use some of the most expensive lawyers in town – Old Square Chambers – and fell for paying for 21 lawyers from Capsticks.

Now Nadia Motraghi, whose submission was accepted in full by the judge, painted Dr Prasad as being a ” Jeckyll and Hyde ” character – not mature enough to realise her case was going nowhere and making repeated claims of unequal pay, racism and sexism she could not substantiate but turned into a totally different person when it came to paying the costs. She told the tribunal that she was very intelligent and capable of earning at least £116,000 a year as a good cardiologist and with a house that had gone up £300,000 in value which could be sold. She also used the fact that she was very popular in the Yorkshire hospital she had worked while being clinically restricted at Epsom. Any objective person might ask how come her talents weren’t equally recognised in Epsom.

Now the final issue is the whistleblowing claim. I had wondered why Jessica Blackburn, in a letter to her, had insisted it lacked any merit. Nadia Motraghi gave the game away. She had she had not produced any evidence to justify a risk to patient safety – no emails had been produced to prove this.

Then I remembered the judgement of Tony Hyams -Parish, which was used to justify the costs by judge E J Baker after he dismissed all her claims. There WAS pretty convincing evidence of a serious breach of procedure in an ” avoidable death ” of a heart patient and it was admitted by Dr Richard Bogle, head of the cardiology department. The death in the hospital was never reported to the coroner. You can read about this on my blog here. You can then read about the Hyams-Parish judgement. You can see it here.

What you will notice is that the evidence in the hearing is never covered in the judgement. Now judge Hyams-Parish, to borrow Nadia Motraghi’s words, is an intelligent man. He would know there are no record of the hearing and the judge’s notes are secret. So by not mentioning this in his judgement it is erased from the public record as if it never existed. Only the fortuitous chance that a journalist was there – and that is now very rare – is there a record. So that blog is the only record that it happened.

So it is not surprising that the trust can confidently claim there is no whistleblowing. The judge has been very helpful to the trust by expunging it from the record. As I wrote at the time this decision was a stain on British justice.

You may wonder why Dr Prasad, a whistleblower, did not turn up and the tribunal was unable to contact her. You can read the statement from Dr Ward here:

Dr David Ward, a retired cardiologist and supporter of Dr Prasad. put up a statement during the hearing in the tribunal chat box on he knew Dr Prasad was not attending :” I believe it is my duty as a consultant physician and longstanding colleague and witness to her state of mind throughout these prolonged proceedings to draw attention to the Tribunal that she is not fit to plead. She is in a state of extreme distress such that she is not able to attend. This hearing will cause further detriments to her health. I believe her GP has written a letter to this effect. “

Today he issued a further statement: “

“I wish to point out that the stress that has been experienced by Dr Usha Prasad throughout these proceedings was evident at the hearing in November 2021 before Mr Hyams-Parish. I know that Dr Prasad and the journalist, Mr David Hencke, have asked for the audio-visual recordings which I am sure would confirm this.

2Her inability to recall events, emails, or to refer to documentation within the extensive bundle, whilst giving oral evidence is because of extreme distress. She was not merely tired, but suffered from mental fatigue, which leads to loss of concentration when “put on the spot” under cross-examination in public at a hearing.

“I consider it is my professional obligation to point this out and would suggest that the audio-visual record of the proceedings of November 2021 are made available to provide objective evidence of the points I have made. It goes without saying that any costs awarded against Dr Prasad would be very damaging to her current state of mind and health. “

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Alison McDermott – Sellafield whistle blower speaks out on employment tribunal failings at ECEC Conference

Posted on October 19, 2023 by davidhencke

This is the first blog with me by my new assistant Joseph Eden, a City University journalism graduate, on a speech given by Alison McDermott, on her horrendous experience as a whistleblower trying to expose bullying and malpractice at Britain’s largest nuclear site and the appalling treatment she received at the hands of British Justice

Alison McDermott being interviewed by Katy Diggory

by Joseph Eden

Employment disputes are supposed to be settled in a free and fair way; the reality is much different. In an interview at the 2023 Annual European Compliance and Ethics Conference in Munich, the largest conference dedicated to this subject globally, whistle blower Alison McDermott spoke of her case, and of a system that is awash with discrimination, inequality and abuse – at the expense of those who need it most.

A recap for readers of this blog, Alison told the conference the ordeal Sellafield and its governing body, the NDA, have put her through. After speaking out about serious employee abuses and abject failures within the nuclear facility’s HR department in 2018, HR director Heather Roberts and Lesley Bowen, who was responsible for the company’s EDI strategy, dismissed Alison overnight, citing financial reasons. Later, when Alison pursued litigation, Sellafield changed its tune, instead saying they acted on concerns over her performance, only mentioning financial reasons “to be kind”.

“It just doesn’t stack up”, she told interviewer and communications consultant Katy Diggory. “There is nothing kind about telling someone that we’re sacking you for one reason, and then three months later introducing a new reason when you no longer have a right to reply because you’ve already left”.

In addition, Alison produced a document highlighting Sellafield’s offer of an 18-month contract renewal just one month before her dismissal, which detailed the nuclear site’s perception of her previous work there as excellent and trusted by the executive.

What followed Alison’s dismissal is another damning indictment of the employment tribunal system. From her initial claim to the verdict, Alison recounts the bullying and harassment she was subjected to, labelled a “self-absorbed, self-serving woman” by Sellafield’s barrister, who insinuated she was pursuing her employer purely for financial gain – despite full knowledge of Alison having refused a £160,000 settlement offer.

Her interview at the conference further highlights the egregious power imbalance within the tribunal system. From the contrasting legal budgets of self-funded claimants versus their employers (in this case, an employer whose £670,000 of legal fees were picked up by the taxpayer), to the absence of any court transcript, and the lack of safeguards to protect employees from having reputation-damaging judgements publicly made against them simply for speaking out.

“Imagine being in a boxing ring with your hands tied behind your back and having to absorb punch after punch” was the metaphor Alison used, her experience made even more shocking with Judge Philip Lancaster allowing her former employers to pursue her for the maximum allowed costs.

Research by Greenwich University supports the imbalance Alison described, finding that more than half of all whistleblowing claimants represent themselves at their hearings, usually as a result of financial constraints. At the same time, employers are securing more expert legal representation than ever before.

The conclusions point to a modern landscape at odds with the informal grounds upon which the employment tribunal system was founded. The requirement of an advanced understanding of legal dogma has accompanied the encroachment of major legal firms into the realm of employment law – with employers spending hundreds of thousands of pounds to defend themselves from the claims levied against them.

This calls into question how an individual claimant could ever be able to compete against their bosses. The outcomes of employment tribunal cases indicate that, in practice, they rarely can. Referencing the government’s own tribunal statistics, Alison told the conference that between 2007 and 2021 only 3% of whistle blowers were successful at tribunal, noting that for women, the challenges faced are even more difficult.

“I think it’s incredibly hard for anyone to blow the whistle because of the huge barriers and inequality”, she said. “But research shows that women’s motives are more likely to be mistrusted”.

Need for substantial reform of the Employment Tribunal system

This phenomenon, Alison says, was manifest in her own judgement, with Judge Lancaster determining she was “pursuing some ulterior motive related to her desire to position herself as the champion of inequality within the nuclear industry”. This despite Judge Lancaster having reviewed evidence of Sellafield describing her as already a nationally respected expert in her field of work.

The experience of employment the tribunal system Alison shared with the ECEC stands as a clear example of why it needs substantial reform. Even now, following a successful appeal of her judgement, she is still being pursued by Sellafield for costs.

“Their duty is to create an environment where people are free to speak out, but hounding people for costs will obviously have the opposite effect” she said, adding that her tribunal experience has left others at Sellafield, the largest nuclear site in Europe, even more scared to raise concerns than they already were.

Closing her interview, Alison recommended several changes employers could implement, many of which are echoed by those who have gone through the same system. Assuming basic training and policies are in place, she prescribed a confidential way for employees to report concerns, a whistleblowing champion within organisations that values people who speak up, and finally that litigation should only be used as a last resort:

First, “investigate, investigate, investigate” she implored, ideally using external investigators. “I think that would send a very clear message to employees that the company really wants us to speak out.”

For those who want to hear directly from Alison the gruesome experiences of being a whistleblower there is a full video on YouTube of her speech. It is well worth watching.

How New Zealand whistleblowers and law advocates are watching ” retaliatory NHS trusts” in the UK who stamp on doctors

Posted on August 29, 2023 by davidhencke

The scandal of the murdered babies at the Countess of Chester Hospital and the threats by managers to doctors who wanted it investigated has gone global. So has the treatment of Dr Chris Day – who has an international following – and Dr Usha Prasad – whistleblowers at two NHS trusts.

This is a guest blog by Tristam Price, a whistleblower from Wellington, who runs an employment law website with two law advocates in Auckland. Their site Leighton Associates can be found here. They were particularly interested in Dr Usha Prasad’s case as under New Zealand law an unsuccessful litigant can be asked to pay £2000 a day for the hearing.

This is a long read but I thought UK readers would be interested to know how much detailed coverage NZ readers are getting on a site aimed at lawyers and whistleblowers in the country. Two of my blogs on Usha’s case have had nearly 2000 hits on their site.

Where the NHS whistleblower retaliators are – by Tristam Price

Where the NHS Whistleblower Retaliators are – by Tristam Price

This map shows where the whistleblower cases are – future articles could populate these case

Letby case, Countess of Chester Hospital (murder of seven infants, attempted murder of another six)

There were two whistleblowers, Dr Stephen Brearey and Dr Ravi Jayaram who shared an office.

It’s too early to go into too much detail as there is an enquiry underway. But we can stand back and examine publicised reports for evidence of whistleblower retaliation.

There were 7 deaths for which nurse Lucy Letby was found guilty of murder, between 8 June 2015 and 24 June 2016.
Dr Brearley raised concerns with managers Eirian Powell and Alison Kelly, Oct 2015. It was brushed off as a coincidence and no action was taken.
In February 2016, Dr Ravi Jarayam noted suspicious behaviour (a baby had stopped breathing).
Dr Brearley demanded Letby be taken off duty in June 2016, after the last two suspicious deaths later found to be murders (the hospital initially refused, but then moved Letby to an admin role, and the deaths stopped).
Medical Director Ian Harvey and another senior manager Stephen Cross opposed calling the police, preferring another agency the Royal College of Paediatrics and Child Health to investigate, which they did in Sept 2016, recommending a further external review which did not happen. After Letby’s arrest in July 2018 it was discovered that Ian Harvey had Dr Brearey marked for retaliatory action, namely a complaint to the General Medical Council (GMC). Fortunately that retaliatory complaint didn’t happen.
In January 2017 the CEO Tony Chambers met with seven neonatal consultants and insisted they apologise to Letby, and warned them not to “cross the line” again. That apology happened on 28 Feb 2017 in a mediation that Dr Jarayam attended with Letby (but Dr Breary refused to). However, the consultants persisted and persuaded hospital management to ask police to investigate.
Police quickly launched Operation Hummingbird in April 2017. Letby was prevented from returning to the neonatal unit and instead worked in the admin role for a further year before her arrest in July 2018. That was nearly three years after Dr Brearey raised the alarm. Around April 2018 Dr Brearey found evidence that one baby had been poisoned by insulin.
Ian Harvey was replaced by Dr Susan Gilby the following month, in August 2018. She found evidence in Harvey’s office of poor reporting practices and an overly secretive management culture. A few months later CEO Tony Chambers resigned and Dr Gilby replaced him, staying in that post until 2022. She is now suing the NHS for unfair dismissal.
The Telegraph reported that, absurdly (or perhaps in typical DARVO style), Ian Harvey has attempted to shift blame onto the doctors.
Alison Kelly has been suspended from her subsequent job in light of evidence that emerged during the Letby trial (probably not listening to Dr Brearley in Oct 2015).

Conclusion:

Whistleblower retaliation at the low end by NHS standards
Bullying and malicious complaints at the low end by NHS standards
An overly secretive management culture; we’re not sure if this was normal by NHS standards
Negligence, which resulted in two more deaths than would have occurred if the whistleblowers were not stonewalled.

However, if Drs Brearley and Jarayan had experienced whistleblower retaliation (perhaps utilising a legal mechanism similar to Leighton Associates’ October 2020 “manual” on gagging whistleblowers with money, threats or both), then almost certainly more premature infants would have died at the hands of Letby.

Overall, while some poor decisions were made between October 2015 and June 2016 when Letby was finally put on administrative duties, putting a halt to the suspicious deaths and sparking investigations, however clumsily, there does not appear to have been whistleblower retaliation, just stonewalling. Nobody close to the Letby case is likely to come out of this unscathed, but at least there should be comfort in the apparent absence of a “smoking gun” of whistleblower retaliation.

Epsom Hospital – Usha Prasad

Epsom and St Helier University NHB Trust (Epsom-St Helier), 15km South of Central London is where Dr Usha Prasad received the full Machiavellian treatment at the hands of senior management as punishment for making Public Interest Disclosures in relation to a coverup of the avoidable death of a heart patient. Epsom-St Helier made 43 complaints about her to the GMC. All were found to be without merit. However, Epsom-St Heliers’ counsel did manage to argue Dr Prasad out of her whistleblower protection and her personal grievance for unjustified dismissal was unsuccessful. In the vast majority of these cases, costs lie where they fall, but Epsom-St Helier chose to pursue Dr Prasad for costs anyway.

Dr Prasad is now unable to afford a lawyer and her GP advised the Employment Appeal Tribunal (EAT) that she was too unwell to attend a hearing on the costs claim against her. Judge Khalil ruled that the 23 August hearing would go ahead anyway. But given the fallout from the Letby case, Epsom-St Heliers appear to be panicking, with an initial reduction of its demand to £24,000, 13.3% of the amount it sought last week. A hearing on the new amount was adjourned by Judge McLaren.

But the CEO can’t un-ring that bell. While much of the litigation pre-dates “Ms T” who has been the CEO since August 2021, the initial £180,000 costs claim of against whistleblower Dr Usha Prasad seems unlikely to have progressed without the sweep of Ms T’s pen, or the click of her mouse. If that is to be her legacy, it’s an unfortunate one.

For those who were wondering what Epsom-St Heliers’ values are:

“Above all we value RESPECT

It helps us to live our behaviours:

Kind
Positive
Professional
Teamwork.

So we can achieve our mission statement: outstanding care, every day.”

Erm… that’s nice. Let’s see what’s happening about 15km northeast.

Lewisham Hospital – Dr Chris Day

The South London Trust Lewisham and Greenwich NHS Trust (Lewisham-Greenwich) dismissed whistleblower Dr Chris Day in 2014, and he has been involved in litigation since. He had similarly raised concerns about patient safety.

Lewisham-Greenwich website says:

“The judgment of the June/July 2022 Employment Tribunal case between Dr Chris Day and Lewisham and Greenwich NHS Trust has been published. This has been a complex, long-running and high-profile case, difficult for many involved.

The Trust welcomes the Tribunal’s finding that “the Claimant’s claims of detriment for having raised protected disclosures are not well founded and are dismissed.”

The judgment did find, however, that some of the wording of a press statement issued by the Trust was detrimental to Dr Day. We apologise for that.

We also recognise that the judgment contains some criticism of the Trust, in particular with reference to storage and retrieval of corporate records. We acknowledge that there are lessons to learn here and we commit to doing so.

As a Trust we are fully committed to an open culture, where everyone should feel able to raise any concerns, and be supported in that.”

Lewisham-Greenwich destroyed evidence valuable to Dr Day, apologised for it, and won.

On whistleblowing, Lewisham-Greenwich’s website goes on to say:

“About Freedom to Speak Up (FTSU) guardians

FTSU guardians in NHS trusts were recommended by Sir Robert Francis, following his review and subsequent report into the failings in Mid-Staffordshire. FTSU guardians have a key role in helping our staff with concerns they might have with or within the Trust. The guardians help ensure our Trust is an open and transparent place to work, where everyone is encouraged to speak up safely to address any concerns or issues they might have.”

Yeah, good luck with that, Lewisham-Greenwich staff.

We won’t be surprised if more NHS cases come out of the woodwork. But are we suggesting New Zealand is any better? No. For example, a District Health Board spent at least £150,000 on a SLAPP against a cardiac physiologist and her advocate, and a Tauranga City Council had a whistleblower, who it had already bankrupted on indemnity costs, briefly jailed for refusing to cease disclosing the Council’s malfeasence.

With the fallout from the Letby case it seems likely that the burden of whistleblower retaliation will shift to the retaliators themselves, and not only in the UK.

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