Nuclear industry leaders contradict each other in landmark whistleblowing case

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

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

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.”