Tag Archives: nuclear decommissioning authority

Massive win for nuclear whistleblower Alison McDermott against Sellafield for re-arguing the tribunal decision by employment judge Lancaster

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The Sellafield site

First hurdle over clearing the way for a two day hearing in January to decide on whether the 13 grounds mean the ruling is overturned

An employment appeal judge has ruled that the decision by Judge Philip Lancaster dismissing whistleblower Alison McDermott’s case against Sellafield and the Nuclear Decommissioning Authority can be challenged now on no fewer than 13 grounds.

This extraordinary ruling on Friday in London by Employment Judge Tucker took less than 10 minutes to grant after she read the submission by Andrew Allen, KC, Alison’s counsel , means practically everything Judge Lancaster decided is open to challenge at an Employment Appeal Tribunal hearing in January. She decided she did not need to hear oral submission from Andrew Allen.

Alison McDermott; Pic credit BBC

In an earlier particularly harsh decision Judge Lancaster had decided that she wasn’t even a whistleblower, for producing, at Sellafield’s request, a damning report revealing serious issues in the HR function including allegations of bullying and harassment. Prior to this Alison had raised repeated concerns about racism, homophobic and foul language and a workforce too frightened to complain to senior management there.

Despite admitting that some of the concerns Alison raised were: ‘very offensive and concerning ” the judge ruled: “The Claimant has not, on the facts, established any alleged disclosure which is properly capable of amounting to a protected qualifying disclosure or the doing of a protected act, or that there is any causal link between what she actually said or wrote.”

It is worth providing a brief recap of what Sellafield and the NDA have done to Alison.  She spoke out repeatedly about serious abuses of employees, including abject failures within the HR department, when the HR Director, Heather Roberts dismissed her overnight, allegedly for financial reasons. But when Alison started litigation, Sellafield changed its tune and Ms Roberts said she had had concerns about her performance and had only mentioned financial reasons to be kind. 

Sellafield then dragged out litigation for three years before making a last-minute offer of £160,000. When they realised the carrot hadn’t worked, they decided to go on the attack and subjected her to a brutalising cross-examination in which her character and competence were repeatedly vilified until she finally broke down on the witness stand.   But even then, they weren’t finished with her.  As soon as Judge Lancaster ruled in their favour, they lost no time pursuing her for costs   And all of this will have a hugely chilling effect on their 11,000 nuclear workforce.  

Judge Lancaster claims he concentrates on anti-discrimination cases

Judge Lancaster, who says he specialises in anti-discrimination cases, went on to support Sellafield’s allegation of “underperformance” describing the report as ” questionable and insubstantial ” and without ” meaningful analysis”. Judge Lancaster completely ignored that management consultants PwC ruled that the HR function was not fit for purpose some three months later.

By then Heather Roberts, then the HR director at Sellafield, had already sacked her on the spot and immediately buried the damning report and admitted to lying about the reasons.  Despite knowing that Alison had become so ill and had no income, the judge made a costs order against her and allowed Sellafield and the NDA to put in a claim for £40,000 costs against her.

Now Judge Lancaster’s own judgement will be in the firing line in January when an appeal tribunal examines 13 arguable grounds of appeal. In a skeleton argument, citing a previous judgement, Andrew Allen, KC, finds a plethora of errors in law which led to Judge Lancaster’s bizarre judgement that she was not a whistleblower. One paragraph that encompasses this – citing no fewer that eight grounds that the case could be challenged gives a flavour of this.

“It is an error of law for a tribunal to fail to give adequate reasons for its decisions so as to enable the losing party to understand why she has lost. The EAT has already decided that it is arguable that this tribunal have erred in law: in applying s27 EqA – in failing to recognise protected acts; in applying s109(2) EqA in identifying the correct relationship in dealing with agency; in failing to engage with the Claimant’s submissions in particular on adverse inferences, protected acts and agency; in failing to take a step back and look at the totality of the evidence; in failing to be Meek compliant; in failing to ensure compliance with the overriding objective to ensure that the parties are on an equal footing; in failing to ensure that the hearing was heard in public in failing to recognise that the Claimant has advanced argument on the facts and the law in relation to the agency point; and in failing to comply with the overriding objective in dealing with the case fairly and justly.”

Andrew Allen KC

Andrew Allen, KC also argued that the tribunal had failed to follow the principles of the law in pursuing costs again Alison which says should only be made in exceptional circumstances especially in the case of whistleblowing cases.

This case and Sellafield’s response is attracting wider attention. It is not just the UK press. On Friday, representatives of a prominent Norwegian environmental campaign group, Neptune Networks flew in from Oslo to attend the hearing.  

Norwegian national press to follow the case

Neptune Networks has been raising serious concerns about Sellafield for the last two decades and confirmed that they will be attending the main hearing on 17 and 18 January 2020 and they will be accompanied by members of the national Norwegian press.

Finally a little note about Judge Lancaster. He is also the chair of directors of a Christian charity, Spacious Spaces, based in Leeds, which offers treatment programmes for alcoholics and drug takers. Here he is known simply as ” Phil”. This is the note about him on their site.

“Phil Lancaster practised as a barrister, specialising in criminal cases. He is now an Employment Judge dealing primarily with the anti-discrimination laws. He is a member of St George’s Church, where he has been a church warden and served on the parochial church council. He is married with fairly recently grown-up children and a large collection of Bob Dylan cds.”

I find it a little perplexing given his Christian background and commitment to treating drug addicts and alcoholics that he is not concerned about what Alison McDermott exposed about the pressures on staff inside Sellafield who are working in the most hazardous nuclear site in Europe.  I also find it deeply disturbing that he made snide and pejorative comments about Alison both during the ET hearing and in the merits and cost judgment. 

An example of this is the nasty insinuations he made about Alison when he accused her in the costs judgment of bringing a claim ‘to advance her career across the nuclear sector’ even though she had turned down a £160,000 to bring her claim to court.   He also seems oblivious of the huge strain and damage whistleblowers face to their careers when they blow the whistle.   If his judgement is found to be so badly wrong by the Employment Appeal Tribunal, there must be some serious questions about justice in the employment tribunal system.

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How Sellafield and the Nuclear Decommissioning Authority misuse taxpayer’s money to hound a whistleblower

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Alison Mc Dermott, whistleblower

One of the biggest tactics to frighten whistleblowers by big companies and health trusts is to threaten whistleblowers exposing malpractice, corruption and discrimination and say they have to pay hundreds of thousands of pounds in costs unless they settle or drop their claims for detriment at employment tribunals.

The tactic regularly used by firms and health trusts in employment tribunal cases is based on a lie. The maximum an employment tribunal can order costs is £20,000 per respondent. Only if it goes to the High Court can a firm or health trust demand such eye-watering sums.

However Sellafield, the NDA and the Business, Energy and Industrial Strategy ministry have decided that it is worth pursuing whistleblower Alison McDermott, a consultant formerly employed by Sellafield for the maximum £40,000 shared between the NDA and Sellafield. They know she has no income and they have even tried to close down her crowdfunding site to raise money to defend herself against their costs claim.

Her whistleblower site is here and you can donate to bring the sum up to £10,000 within the next 14 days otherwise she loses the lot.

Damning report revealed relentless bullying at Sellafield

Alison was called in by Sellafield’s human resources department to investigate their working practices and produced a damning report revealing employees were subjected to appalling racist, sexist and homophobic abuse and relentless bullying. Only 11 per cent felt they could raise issues with the company without reprisals and four percent thought they got honest answers. Faced with such a damning account Sellafield sacked her rather than change its ways.

This led to an employment tribunal case which not only found in favour of Sellafield and the NDA but saw her publicly denigrated by Sellafield’s barrister, Deshpal Panesar KC, who accused her of ‘acting out of revenge’  of being ‘intent on ruining careers’ of being ‘self-absorbed’ and ‘a woman clearly in pursuit of a windfall.’ 

The NDA tried to buy her off with a £160,000 pay out in return for her silence on what she had found at Sellafield. She refused to accept – arguing among other points that such a culture permeating a nuclear facility was dangerous given serious issues of health and safety. She tried to raise this with BEIS but they refused to meet with her having signed off the £160,000 settlement.

Now a judge has ruled that she is entitled to appeal on six different grounds – and she has secured Andrew Allen, KC, a lawyer who represented Dr Chris Day, in his recent whistleblowing tribunal case against Lewisham and Greenwich NHS Trust, to represent her.

But she has also to face a costs hearing. So how is this being pursued by the NDA and Sellafield.

Sellafield

I put in two freedom of information requests to Sellafield and the NDA on how much they had spent and the revelations were very interesting. Sellafield has already spent £5640.16 on external advice plus using its own staff to pursue Alison. The NDA spent £7524.58 on external legal advice and an unknown sum on staff time to pursue her. So before we even get to court over £13,000 has been spent using taxpayers money. Furthermore the NDA according to an internal memo spent money on lawyers trying to close down her whistleblowing appeal with no success. The total cost spent by both organisations fighting Alison has exceeded £500,000 of taxpayers money.

The replies also revealed that the boards of both organisations including the Chief executive officer of the NDA , David Peattie ,were ” apprised” of the decision meaning that it reached board level. BEIS was also informed and approved the costs case but declined to comment about it because of current legal proceedings. What on earth are the boards of these organisations spending their time on this when they have much serious work to do on issues like nuclear safety and disposing of old nuclear power stations.

Now when this gets to a tribunal there will be a two day hearing and according to internal NDA documents it was paying over £5500 a day for top notch barristers. It is reasonable to assume so was Sellafield. This means the hearing will cost another £22,000 as they will be represented separately.

So altogether we are taking about £35,000 as a minimum ( excluding staff time) to recover a maximum of £40,000. That is – if they win. And even if they win most judges rarely award the full sum if it is a litigant in person. It is more likely to be £5000. If they lose this is taxpayers’ money being thrown down the drain.

If this was a commercial company I very much doubt it would past muster as a ” business case”. It is only because the boards of these organisations have unlimited access to taxpayers money that they can pursue this.

And to my mind this is only being pursued to hound a whistleblower who has produced some very damning information about life in Sellafield. This has called Sellafield’s reputation into question and they don’t like it, hence this vindictive approach.

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Nuclear industry leaders contradict each other in landmark whistleblowing case

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Whisteblower Alison McDermott

Guest Blog from journalist Philip Whiteley who is covering the whistleblowing case with me

A split emerged between two leading employers in the UK nuclear industry at Leeds Employment Tribunal, in a case where they are both respondents in a whistleblowing claim, in the session on Tuesday 29 June. Representatives of the governing body the Nuclear Decommissioning Authority overwhelmingly backed the version of events put forward by the whistleblower, undermining the defence of Sellafield, the nuclear reprocessing plant.

The case is being brought by Alison McDermott, an experienced equalities professional, who is claiming her sudden termination of contract by Sellafield in October 2018 was in response to her making protected disclosures on acts of bullying at the nuclear reprocessing site in Cumbria. Sellafield’s management initially claimed that the reason for her dismissal was financial only, although at the tribunal it has produced witnesses reporting concerns over her performance.

On Tuesday three senior executives from the governing body, the Nuclear Decommissioning Authority, offered sharply contrasting evidence. All expressed admiration for Ms McDermott’s contribution to improving policies of equality diversion and inclusion (EDI), and all confirmed that there had been concerns over the competence of the HR director who sacked her, Heather Roberts, and the HR function at the nuclear site.

Sellafield Human Resources department ” not fit for purpose”

All said the reason they were given for Ms McDermott’s dismissal was financial. David Vineall, Group HR director at the NDA, said that Ms McDermott had been integral to the EDI ‘journey’ that the industry was embarking on. Under questioning from Ms McDermott’s barrister James Arnold, Mr Vineall conceded that the HR function at Sellafield was ‘not fit for purpose’, the words used in a damning report he had commissioned by external consultancy PricewaterhouseCoopers.

The court heard how the governing body had recommended that Ms Roberts be replaced by Mike Barber, an HR manager at the NDA. Mr Barber, one of the witnesses for the NDA on Tuesday, said he had ‘a very good working relationship with Ms McDermott’ and was ‘surprised’ to hear of her sudden dismissal.

Some of the most damning evidence undermining Sellafield’s case only came to the court’s attention in recent weeks. Mr Arnold pointed to the date of 26 April 2021 when the claimant first learned of an email from 23 October 2018, just a few days before Ms McDermott learned of her dismissal, in which Mr Vineall wrote to colleagues following a meeting with the then Sellafield CEO Paul Foster the day before, where he suggested that Ms Roberts be replaced immediately.

Nuclear Decommissioning Authority ” very nervous” about Ms McDermott’s dismissal

Just last week, the tribunal heard for the first time evidence from Ms Roberts that she had a made a note stating that the NDA was ‘very nervous’ about the timing of Ms McDermott’s dismissal so soon after her critical report.

The revelation that the respondents had hidden evidence from the claimant and the tribunal that was helpful to her case until this year is particularly significant, because there were earlier hearings in the case. There was a preliminary hearing in July 2019, and Ms McDermott had been granted a strike-out hearing, on the basis that her case was strong.

The strike-out hearing took place on 7 July 2020, some nine months before the revelation of Mr Vineall’s email, and 11 months before more evidence from Ms Roberts, also central to the case, was made available during the hearing itself. Judge Lancaster did not rebuke the respondents for this, but it potentially constitutes a breach of tribunal rules by the respondents, as well as a potential breach of whistleblowing legislation, as it potentially caused detriment to the claimant.

Had Judge Batten, sitting alone last July, been made aware of all the relevant evidence, she may have awarded a strike-out in Ms McDermott’s favour, sparing her the ordeal of a further year of litigation and a three-week full hearing.

Section 47 (A) of the Public Interest Disclosure Act 1998, under which the case is being brought, specifically prohibits employers from imposing a detriment on a whistleblower as retaliation for raising issues of concern in the workplace.

Mr Arnold reminded the court that much of the evidence has only been made available to the tribunal as a result of the claimant’s own efforts through subject access requests and Freedom of Information requests. This would indicate a strong claim of failure to follow tribunal rules – potentially a criminal offence by the respondents – though Mr Arnold did not press the case.

Ms McDermott’s data protection rights breached by Sellafield

Sellafield already has a ruling against it in the case. In January, the Information Commissioner’s Office ruled that it had breached Ms McDermott’s data protection rights in the handling of three letters of evidence on which Sellafield is relying to support its case in the tribunal over her performance issues. The letters were produced on non-secure home PCs. The tribunal has permitted Sellafield to use unlawfully produced evidence.

On one of the letters, the metadata was wiped while in possession of DLA Piper, Sellafield’s law firm, temporarily hiding details on the document’s authorship and time of creation. The law firm is separately under investigation by the Solicitors Regulation Authority over the issue.

The case continues.

A toxic indictment of the bungled nuclear decommissioning mess that cost taxpayers millions

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Steve Holliday: A damning report Pic Credit: Twitter

Report recommends a root and branch review of the National Decommissioning Authority

You have a right as a citizen to be kept safe from any dangerous pollution from the ageing 12 closed Magnox nuclear reactors and research stations in the UK. You would expect the organisation protecting us to hand out properly thought out contracts to do the job. The failure by the Nuclear Decommissioning Authority to organise a £6.6 billion contract to clean up properly cost taxpayers £97.5 million when rival companies who lost out successfully sued the agency forcing them to settle with them.

This month completely unnoticed by the national press Steve Holliday, the former chief executive of the National Grid, published a damning report on how the agency failed to do its job and the failure of its supervising body, the UKGI, to supervise it and the Department for Business, Energy and Industrial Strategy, to keep tabs on what was going on.

So frightened were former senior executives of the Nuclear Decommissioning Authority(NDA) of his inquiry report that they rushed to the High Court to try and get a judicial review to stop him ruining their reputations. They failed but delayed the report.

For the record they were John Clarke. the former NDA chief executive; Stephen Henwood, the former chairman; Robert Higgins, the former head of legal services; Mr Graeme Rankin, former head of competition and Mr Sean Balmer, former commercial director, He has spared their blushes by not naming them personally in his report.

Steve Holliday had in his remit the power to recommend disciplinary action against them for their failings. But he chose not to do so instead blaming the culture of isolation in the nuclear industry in general and the running of the Nuclear Decommissioning Authority in particular.

NDA failed to keep a grip

In broad terms the NDA failed to keep a grip on what has happening after they awarded the contract to the Texas company Cavendish Fluor Partnerships before it ended up in the courts where it was successfully challenged by rivals Energy Solutions and Bechtel. The original contract was changed so much and cost so much more – latest estimate is up to £8.9 billion that the companies who lost out were able to sue.

So imbued were the senior staff at the NDA with how clever they were in organising procurement contracts that they missed warning signs and worse didn’t inform the NDA board what was really going on until it was too late. The UKGI is revealed to have a conflicting role – both supervising it and sympathetically helping it sort out problems. He rightly suggests that it should be stripped of its day to day supervision.

The report says : “There appears to have been a culture that sought to self-justify, and which was inward looking. In particular: the NDA had a belief in its own skills and intellectual ability, and did not recognise or seriously contemplate that it may have any weaknesses, when contracting and managing external advisers, it had a propensity to limit their role, and did not appear to welcome strong challenge; and it failed to take sufficient steps to bring in people from other industries with different skills and experience, and to learn lessons from them.”

Damning conclusions picked up by a whistleblower

His criticism of the culture of the NDA has been picked up by Alison McDermott, a whistleblower taking the NDA and Sellafield to an employment tribunal, and may be quoted in her case expected later this year. The BBC recently did an exposure on bullying and harassment at Sellafield. The link to the story is here.

He recommends a root and branch review of the NDA by the business ministry- which has now handed the contract back in house – changing its structure and bringing in people from outside the nuclear industry and putting a top flight lawyer on the board.

I am worried that since there was so little publicity about this report whether the ministry will have the incentive to do anything about it. If it doesn’t we could see more waste of taxpayers’ money and we need changes for our safety in cleaning up some of the most toxic sites in the country.

Four years ago Sir Amyas Morse, then comptroller and auditor general , said “The NDA’s fundamental failures in the Magnox contract procurement raise serious questions about its understanding of procurement regulations; its ability to manage large, complex procurements; and why the errors detected by the High Court judgement were not identified earlier.”

We now need the National Audit Office and MPs on the House of Commons Public Accounts Committee to keep an eye on this. He also has wider recommendations for the rest of Whitehall when it hands out big contracts.

Bradwell Nuclear Power Station; Being decommissioned under this contract

Previous Stories https://davidhencke.com/2017/10/26/nuclear-decommissioning-how-whitehall-turned-toxic-waste-into-a-dirty-mess/

https://davidhencke.com/2020/12/11/the-latest-toxic-progress-on-the-great-nuclear-decommissioning-mess/

The latest toxic progress on the great nuclear decommissioning mess

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The now decommissioned Bradwell nuclear power station – the first one to be safeguarded

Full report on the scandal still not published as top officials try to avoid blame for the fiasco

Just over two years ago this site carried a blog post with Byline Times on one of the biggest and most incompetent contracts ever made in Whitehall by the Nuclear Decommissioning Authority.(NDA) The £6.2 billion contract to the Texas company Cavendish Fluor Partnerships ended up in the courts where it was successfully challenged by rivals Energy Solutions including Bechtel who won £97m compensation on the grounds that the contract had been awarded illegally.

The contract was to clean up and make safe 10 ageing Magnox nuclear power stations and two research facilities at enormous cost to the taxpayer. It is part of a long term decommissioning programme which will eventually cost the taxpayer a staggering £132 billion and not be finally completed until 2140 long after anybody reading this ( and me) will have died.

At the time Sir Amyas Morse, then comptroller and auditor general , said “The NDA’s fundamental failures in the Magnox contract procurement raise serious questions about its understanding of procurement regulations; its ability to manage large, complex procurements; and why the errors detected by the High Court judgement were not identified earlier.”

Not a pretty picture

Now two years on the National Audit Office and MPs on the Public Accounts Committee have looked at what has happened. And the saga is continuing with not altogether a pretty picture. And the final report was held up by legal action from the NDA’s former senior management team.

The result of the first court case meant that the NDA shortened the contract and it finished last year.

The cost of doing this was to ratchet up another £20 million bill for the taxpayer to avoid yet more litigation this time from the contractor. This took the extra cost to the taxpayer to £140m.

Then the cost of the whole project of decommissioning the power stations has gone up yet again. From an estimated £6.2 billion to anything from £6.9 billion to £8.7 billion. The reason is that the Nuclear Decommissioning Authority don’t know the real state of all the sites. And it is obvious that there is a huge amount asbestos on the sites are a major problems.

And they haven’t been very good at making sure the contractor did a good good job. One defective performance notice on Bradwell nuclear power station had to be issued three times before it was correct- and then it was too late as it came during the month the contract finished. In the end the contractor agreed a post contract payment cutting £2.98 million from its bill. Bradwell was the first to move to a ” care and maintenance ” contract in 2018.

Management has been strengthened since the fiasco with new people brought in. New state companies have been set up to deal with decommissioning. But we won’t know the complete story of the debacle until the final report from Steve Holliday, the former head of the national grid, reveals what happened and who is to blame.

He has issued a bland interim report but publication of the final report was hit by yet more legal action.

Inquiry chief insists he will investigate top management and ministers

Mr Holliday concludes in his interim report: “

“I will further investigate whether the actions of individuals within the NDA , and those of government officials and ministers, were consistent with the standards expected of them, including relevant codes of conduct.
“I will continue to investigate whether decision makers (individuals, including government officials and ministers or boards) had the necessary information to make those decisions and, if not, why not. This will cover decision making at all stages of the matters covered by the terms of reference, including the procurement, the litigation and the matters leading to the termination for convenience.”

This led to five officials – John Clarke. the former NDA chief executive; Stephen Henwood, the former chairman; Robert Higgins, the former head of legal services; Mr Graeme Rankin, former head of competition and Mr Sean Balmer, former commercial director, to go to court to seek a judicial review into Mr Holliday’s inquiry.

Each had been notified they could be subject to criticism by Mr Holliday and were alarmed it could affect their reputations and livelihoods.

They claimed they had all had their human rights breached by Mr Holliday unlawfully delegating work and criticisms of them to his staff; hadn’t disclosed all the material to them and prevented them from sharing information while making representations to him.

Judicial review dismissed

On Christmas Eve last year the judge Mr Justice Murray dismissed the ” arguable” case over the delegation of work and all the other grounds. It was pointed out that there are 2.5 million documents in the case and Mr Holliday could hardly be expected to read every one.

The result is that we still have no final report nearly a year after the court decision suggesting that wrangling is still continuing. As MPs on the public accounts committee point out :”Implementing the recommendations of the Holliday inquiry into the Magnox contract and the Department’s ‘Tailored Review’ of the role of the NDA will be critical and the publication of these reports cannot come soon enough.”