The Sunday Mirror reports today of yet another potentially serious leak affecting worker safety at Sellafield which was not publicly released two years ago.
A whistleblower told the paper that an elevated level of nitrogen which can cause asphyxiation was released in the most dangerous building on the site – the Magnox nuclear storage facility which is also leaking contaminated water into the ground.
As I reported in Byline Times last month the 100 year clean up is already 13 years behind schedule and £20 billion over budget and its own nuclear safety experts say is becoming increasingly unsafe. The article is here.
What is disturbing is that the whistleblower told the newspaper. “It was most serious because it could have killed somebody. The whole point of having all these safety procedures is to stop people breathing in inert gas, so we can evacuate before there’s a chance of breathing it in.”
The source said the leak in May 2023 was raised as an incident report and “was of a level that needed to be escalated”. But it was not escalated, according to the whistleblower, who added that “no lessons were learned”.
The source said: “There is no confidence or trust in the senior management now. We are dealing with nuclear waste and people are afraid to speak up. The problem is that people are being victimised if they report safety issues.
“Or they are escalated to managers who then try to cover them up or sweep them under the carpet. And that is a really dangerous culture in a place like Sellafield.”
This new disclosure just comes after a report from the Commons Public Accounts Committee that was highly critical of the management at Sellafield and the oversight of the dangerous site by the Nuclear Decommissioning Authority. It was also highlighted safety issues as the buildings reach the end end of their life span and MPs were sceptical of claims by the senior management that relations with staff are improving and a toxic culture of bullying and harassment had been stopped.
Officially Sellafield told the paper:”This was reported and investigated swiftly and thoroughly. Our regulator was informed in line with established protocols,” they said. “Our Safecall system remains independent providing a safe and confidential reporting system for the whole of the NDA group.
“Whistleblowers are respected, protected, and valued and we actively encourage employees to report matters of concern. Without exception, issues raised are taken seriously, investigated appropriately, and treated confidentially. We strongly advise anyone with a concern about a safety event or investigation to report it so we can act on it.”
They added that during routine testing of a nitrogen delivery system in the Magnox Swarf Storage Silo in 2023, a control valve was opened causing a ‘brief increase in flow and pressure of nitrogen’.
The paper reports that Ex-Sellafield HR consultant Alison McDermott raised safety concerns in an employment tribunal in 2021. The management ended and her contract and spent hundreds of thousands of pounds of taxpayers’ money to undermine her concerns at employment tribunals.
Alison McDermott
Alison, who lives near Ilkley, West Yorks, said: “In my experience, leaders cover up problems and lash out at people who speak out. That’s a terrifying state of affairs at a nuclear site. In my 30 years in HR it’s the most secretive, punitive toxic culture I’ve ever experienced.”
To my mind it suggests that Sellafield still has a very long way to go to convince Parliament and the public that they are handling safety issues properly at this plant.
Judge Lancaster – the same judge who vilified the now vindicated Alison McDermott- a Sellafield whistleblower over bullying and nuclear safety issues
Judge Philip Lancaster – the controversial employment judge – already facing 16 complaints – nearly all from women – about his handling of their tribunal cases – has now been revealed as having helped a health trust to cover up patient deaths.
An investigation by Michael Buchanan, the BBC’s social affairs correspondent, released yesterday revealed that police are investigating heart patient deaths at Castle Hill Hospital near Hull. His full report which contains disturbing treatment of patients and a “cover up” of the circumstances of their deaths from relatives is here.
The employment tribunal case heard by Judge Lancaster centred around the safety of a procedure called Trans-Catheter-Aortic Valve Implantation (TAVI) – a keyhole surgery method to replace a defective aortic valve in the heart to predominately elderly patients,
The case had been bought against Hull University Teaching Hospitals Trust by consultant cardiologist Dr Thanjavur Bragadeesh, then clinical director of the hospital’s cardiology department, because he had raised safety concerns about the implementation of the procedure which had led to patients deaths.
Dr Bragadeesh
He had first raised the issue in 2020 to little effect and took the trust to the tribunal as a whistleblower in 2023. In fact he was demoted following raising the issues.
Ranged against him were the trust’s chief medical officer, Dr Makani Purva and three consultant colleagues, Dr.Joseph John, Dr Kumar Chelliah and Dr Manish Ramlall.
He brought 29 claims of detriment and 13 protective disclosures. All detriment claims were dismissed by Judge Lancaster as either being out of time or failed claims which were legally irrelevant.
As a result it was never publicly revealed until yesterday by the BBC that at least 11 patients died following procedural failures, with some death certificates failing to mention the surgery at all. Families were never told the truth. Independent reviews confirmed catastrophic decision-making and a mortality rate three times the national average.
Despite Dr. Bragadeesh’s concerns being validated by external reviews, including those by the Royal College of Physicians, the tribunal did not adequately engage with this substantive evidence. The failure to consider corroborative findings from reputable bodies suggests a potential bias in favour of the employer and a reluctance to hold the institution accountable.
Certainly the Judge Lancaster’s judgement reflects this highlighting similar omissions and gas lighting of whistleblowers as seen in other judgements – notably Judge Tony Hyams Parish ignoring the General Medical Council’s revalidation of whistleblower Dr Usha Prasad, then a cardiologist at Epsom and St Helier Trust and the avoidable death of a heart patient. And Dr Bragadeesh is described as having a ” bullying and undermining attitude” to other consultants – just as Dr Martyn Pitman, the obstetrician, who raised patient safety issues in the maternity services at Hampshire Hospitals NHS trust, was portrayed when he lost his tribunal case.
Alison McDermott
Yesterday also saw the damning findings of the Commons Public Accounts committee on Sellafield which showed that Sellafield had paid out £377,000 to staff to end labour disputes and had issued 16 non disclosure agreements to staff to cover up complaints. This vindicated Alison McDermott’s portrayal of the place at risk over nuclear safety and a bullying culture.
Still Sellafield and the Nuclear Decommissioning Authority are using the findings of Judge Lancaster’s flawed judgements to gaslight her.
In a joint public statement they said: “This case has been thoroughly litigated through an Employment Tribunal, Employment Appeal Tribunal (EAT) and the Court of Appeal. It was found that the claims made against Sellafield Ltd in this case were entirely without substance, and there was no basis for claims against the NDA.”
Try telling that to the MPs who wrote the report on Sellafield who say they are not convinced by claims that everything is OK or to the Department for Energy who admonished both organisations and said they must crack down on bullying.
There is a much wider issue to all of this. It is the question of the public accountability. Judge Lancaster is being protected by the Judicial Conduct Investigations Office. Despite a growing pile of complaints from women and from Dr Bragadeesh about his behaviour at tribunal hearings, it refuses to act on any of them. It is also fighting the Information Commissioner to prevent the public and press being able to put in any freedom of information requests.
By doing so they risk bringing the judicial system into disrepute and in my view they lack a moral compass.
If they continue to do this, they are acting as a party to suppressing patient safety in the National Health Service and in the case of Sellafield, because it is such a contaminated and dangerous place, putting the general public at risk.
Baroness Sue Carr, the Lady Chief Justice, and Shabana Mahmood, the Lord Chancellor, who both receive advice from the JCIO, should be wary about ignoring these developments, because at some stage they are going to come back and bite them.
Euan Hutton, chief executive of Sellafield, found himself being called to apologise in public to whistleblower Alison McDermott by her local MP, Anna Dixon at a highly charged hearing of the Commons Public Accounts Committee last week.
Anna Dixon MP
The chief executive was clearly embarrassed to face questions about spending such a lot of public money to silence the whistleblower after she produced a report about the toxic culture of bullying and harassment at the UK’s biggest nuclear waste plant.
Alison McDermott, a well respected management and diversity consultant, had faced a series of tribunals and costs hearings.which cost Sellafield over £750,000 by employing top flight lawyers.The main hearing was before judge Philip Lancaster, a judge now facing complaints from 10 women, including Alison, for his patronising and misogynist approach to female litigants who appear before him.
Anna Dixon,Labour MP for Shipley, raised the issue at the beginning of the hearing which was to examine Sellafield’s record so far in running down the waste facility over the next 100 years.
She pointed out that Alison had been head hunted through Capita to work for Sellafield and was then employed directly because of her excellent work. After she produced a report revealing a toxic culture of bullying and harassment at Sellafield this all changed and she was removed from Sellafield.
She told him :” I understand that at that time you did not invoke your whistleblowing policy or take a statement, as required by your own policy. Instead, you spent some £750,000 on legal fees. Perhaps you would confirm that. You refused mediation for three years, and pursued Alison for costs twice and lost on both occasions. As you will know, the remit of this Committee is concerned with the proper ethical use of public funds. As the new CEO, Mr Hutton, I would ask you whether you think this was a good use of public money.”
….” I have seen the treatment of other whistleblowers, which is similar to the treatment of my constituent, that has serious detriment to health, mental health and indeed professional reputation. Alison, as you probably recognise, is sitting here in the public gallery. I recognise that you are not willing to say very much. I am disappointed in that, because most of this is historic and in the public domain. I wonder whether you might apologise to her for the way that she has been treated by Sellafield.”
Mr Hutton replied implying that the situation in Sellafield then was ancient history.
“Over the last seven or eight years now, we have made really big strides forward in addressing some of the issues that there were at that time. You might say that I would say that but, in the most recent staff survey, which concluded, I think, a fortnight ago—I only say “I think” because I cannot remember whether it was a fortnight ago—we have seen significant improvement.”
Anna Dixon concluded: “I am going to come back later and challenge whether these problems have really completely gone away. I do not think that I heard an apology, but I hope you will at least agree to meet with me and my constituent, Alison. “
Since the hearing Alison McDermott has written an open letter to Mr Hutton, David Peattie, group chief executive of the Nuclear Decommissioning Authority and Paul Vallance, a non executive director of the NDA saying:
“The PAC’s examination has now raised serious questions about your leadership and your organisations’ management, culture, and safety practices.
I’ve made no secret of the toll this has taken on me. But each time I was faced with the choice between comfortable silence and speaking the truth, I chose the latter— without hesitation. That decision is one I will always carry with quiet pride. I can look myself in the mirror, sleep peacefully, and carry a clear conscience—something that is priceless.
I can’t help but wonder: how do you reconcile your actions?
What kind of man do you see when you look in the mirror? “
The PAC has now to produce a report following the hearing. I somehow think it will not be a glowing endorsement of practices at the UK’s biggest waste facility.
If you were thinking of complaining about your employer’s solicitor trying to force you to sign a NDA barring you from complaining to the police, another regulator, or ban you from making freedom of information (FOI) requests or subject access requests to your company or public body, you might as well not bother.
For new figures released this year following a request under the SRA’s voluntary Transparency Code (it is not signed up to FOI) reveals how miniscule the action over misused NDAs is taken by the SRA that polices over 167,000 practising solicitors.
Over the last four years, believe it or not, action has only been taken in less than FIVE cases where NDA’s are involved out of the 10,000 complaints about solicitors received by the SRA every year.
Figures released to David Change (he is on X @DavidChange12) where the sole complaint was about the misuse of Non Disclosure Agreements amount to just 41 over the last four years. Of these 13 were not investigated and there were fewer than five warning letters issued over the four year period, similar for letters of advice, and public and private rebukes. In some years the SRA was almost completely inactive. In 2023 it is issued just what looks like one public rebuke. For the first five months of this year it says it has had just one complaint and taken no action so far.
Sellafield
One of the complaints I know about involving a whistleblower in Sellafield, the nuclear waste site, the documents I have seen, show that solicitor Emma Mills, a partner in law firm DLA Piper, had tried to force the person to sign away his rights to make FOI and Subject Access Requests to Sellafield and withdraw a complaint to a regulatory authority about the company’s human resources department. The SRA replied to him that she had behaved correctly without it looks like bothering to investigate further. Yet the Information Commissioner’s Office told me that asking anybody to withdraw FOI’s or SAR’s was outside the law.
The SRA’s figures do contain a caveat. They did not check whether among cases whether the complaint against other activities by solicitors included a complaint about misusing NDA’s, so the figure could be higher. It was too expensive under FOI guidelines for them to check further.
The fact that there is a problem with the misuse of NDA’s is not disputed. A snapshot of the present situation was put together by the Legal Services Board and published this year.
Concealed illegal activity included harassment and discrimination
The report said: “Examples of alleged illegal activity reported by respondents as having been concealed by NDAs included unlawful harassment and discrimination (e.g., on the grounds of sex, race, disability and maternity), sexual assault and abuse, fraud and tax evasion. Many respondents reported NDAs being related to employment disputes. In defining misuse, some respondents questioned whether NDAs should ever be used to conceal misconduct, prevent a victim of wrongdoing from seeking support or reporting to regulatory or law enforcement bodies.”
The report was a snapshot – for example there was just one case cited involving the NHS – when certainly health trusts use them more widely to cover up scandals in the health service. It showed that many employees pushed to sign NDA’s, felt an imbalance of power between their knowledge of what they were signing and the company’s lawyers and were bullied into signing NDA’s. Others felt the firm did not care about their mental state or threatened them with facing an employment tribunal where the company’s lawyers would expose their failings.
There was also a mismatch between the fine words of the evidence given by the SRA to the Legal Services Board who showed they understood that lawyers did pressurise people to sign NDA’s and the actions it took when it received a complaint as shown by these statistics.
What this pointing to is a change in the law governing the issue of Non Disclosure Agreements which should be outlawed if they contain any reference to people losing rights given by Parliament to make FOI or subject access requests or complain to any regulatory authority including the police and HMRC.. What is clear from the Legal Services Board report is that many employees are totally unaware of their rights which can then be exploited by dodgy companies and irresponsible public authorities. As for the SRC this record of handling complaints is abysmal.
There appears to be growing evidence that the Solicitors Regulation Authority,(SRA), the body that regulates and upholds professional standards for lawyers, is inconsistent in its judgements, over sympathetic to lawyers, particularly from large firms, and is not regarded by the public and whistleblowers as protecting their interests.
I took up the treatment of two whistleblowers who separately complained to the SRA about lawyers acting for the Sellafield nuclear waste site and the Nuclear Decommissioning Authority (NDA) recently. . Both complaints were rejected by the SRA who said the lawyer had behaved correctly. Yet they raised serious questions about the use of Non Disclosure Agreements (NDAs) to crush people complaining to regulators and use Subject Access Requests and Freedom of Information requests to obtain information from public authorities.
alison McDermott
One, Alison McDermott, who lost a consultancy contract after exposing bullying at the nuclear plant, even asked her former MP, Philip Davies, to complain about her complaint to the SRA being used against her by lawyers in a costs hearing. The chief executive of the SRA, Paul Philip, rejected this and cited the NDA’s view that she had acted “‘vexatiously, abusively, disruptively or otherwise unreasonably’ in the way that her employment proceedings were conducted.” In fact both organisations lost most of their £40,000 claim against her.
She had previously complained about Deshpal Paneseer KC, a barrister from Old Square Chambers, representing the nuclear site, for the language he used against her saying she was a fundamental liar but got nowhere with this.
The costs claim included trying to get retrospectively the costs of a freedom of information request that Sellafield had granted. In fact there is no provision under the FOI Act for retrospective claims – the public authority has to decide within 20 working days of the application whether to grant it or not.
The second whistleblower – who I have not named – complained to the SRA about Emma Mills, a solicitor with DLA Piper, a proposed NDA ( this one known as a COT3) which demanded he withdraw all FOIs and Subject Access Requests and a complaint to a regulatory authority or face a £14,000 costs hearing despite withdrawing his case at an employment tribunal.
He wrote : “I am a Whistleblower acting in the public interest, and I regard the behaviour of Emma Mills and the Respondent as menaces and harassment, pushing me to accede unwillingly into signing a COT 3 contract which is not in my best interest, and under the threat of pursuing me for costs if I do not sign the COT3 contract.”
Again the SRA rejected this and again it is not lawful under the FOI Act as there is no provision in the Act for an organisation to ban a person using FOI. This was confirmed by the Information Commissioner’s Office.
Inconsistences in judgements
The inconsistency is shown by a recent decision by the SRA over a similar case reported on Linked In by Loopline Media. The full article ishere. A law firm Orrick Herrington & Sutcliffe (UK) LLP had been employed by a German firm Payone, a Digital payments service firm, based in Frankfurt with employees in the UK. The report found the law firm had tried to impose a settlement with a whistleblower to withdraw a complaint to the Pensions Regulator that it was breaking UK law by failing to provide a proper pension for employees. The SRA found the law firm had could have negatively impacted the reputation of the legal profession. Orrick’s conduct was found to fall short of the SRA’s ethical standards, prompting regulatory interception by way of a letter of advice.
However the firm have been treated with kid gloves. No disciplinary action is being taken and a full report is not being published. The Pensions Regulator is investigating the firm.
Damning conclusion on the Legal Lens blog
The state of the SRA is thoroughly criticised in a post, also on Linked in, by John Barwell, a data privacy expert. In a damning blog, he points out multiple failures by the SRA. questioning whether a body funded by solicitors can really police solicitors. His damning conclusion is :
“The Solicitors Regulation Authority was established to protect the public and ensure that the legal profession operates with integrity. However, its track record shows that it is a regulator in name only, failing to achieve these goals. The mishandling of cases involving prominent law firms is not just an isolated failure—it is symptomatic of a regulator that has lost its way. Without significant reform, the SRA risks becoming an even more useless entity, incapable of holding the legal profession accountable. It is time for the SRA to step up, enforce its regulations consistently, and restore public confidence in its ability to regulate the legal profession effectively. Until then, it will remain a toothless watchdog, incapable of fulfilling its vital role in the justice system.”
I would add more thing – there is a question mark over its choice of solicitors to do its work – especially if you are a whistleblower in the NHS. The law firm which holds the contract is Capsticks, which also holds a major contract with the NHS to represent trusts. It is fiercely proactive in pursuing whistleblowers trying to expose patient safety concerns in the NHS and earns a substantial income – funded by the taxpayer – to represent trusts in these cases. If Capsticks is seen as bringing the profession into disrepute – a complainant may report them to the SRA only to find that Capsticks handles their cases. I know of one barrister who did spot what he thought was bad behaviour but he told me it was not worth going to the SRA about Capsticks since the SRA was their client.
I asked the SRA for a comment on my two cases last week but they have not released it yet. I will put it up when it arrives.
A very disturbing story is emerging from Sellafield about attempts by the management and its lawyers to make whistleblowers sign away their rights to make freedom of information and subject access requests to their organisation or face large costs bills through the employment tribunal system.
This attempt – when I checked with the Information Commissioner’s Office – is outside the law as Parliament gave all UK citizens the inalienable right to make FOI requests to public authorities and subject access requests. No public sector organisation can ask a person to withdraw a subject access request or an FOI request let alone use it as bargaining chip in litigation at an employment tribunal.
Yet lawyers either through total ignorance about the FOI Act or a deliberate attempt to con whistleblowers threatened with costs into giving up their rights under British law appear to be using this as a tool to harass whistleblowers.
The misuse of FOI legislation has emerged in two whistleblower cases involving Sellafield and the Nuclear Decommissioning Authority. One is well known – the case of Alison McDermott, a human resources and diversity consultant, who has been involved in a long battle with the nuclear authorities after they attempted cover up a toxic and bullying culture.
The second which I covered recently involved the tragic case of a whistleblower who self harmed when threatened by Sellafield with costs after he withdrew a claim at an employment tribunal.
Documents from Sellafield that I have seen reveal that a legal document drawn up by their lawyers and Emma Mills, a partner with DLA Piper, an international law firm, included this demand:
“The Claimant hereby further agrees …to withdraw any and all outstanding data subject access requests and/or Freedom of Information requests.”
For good measure it added that he was “to withdraw any complaint made to the Chartered Institute of Personnel and Development (CIPD).”
The withdrawal of FOI requests is directly linked to Sellafield’s claim for £14,000 costs against him after he withdrew his claim at the tribunal. If he does the legal document reads: “The Respondent hereby confirms that it shall immediately write to the Employment Tribunal in the terms of the letter at Appendix withdrawing its outstanding application for costs against the Claimant in relation to the conduct of the Tribunal Claim.”
Luckily the whistleblower was savvy enough not to agree to sign this. As he wrote to the management:
“A COT3 [ name of the document] that limits my ability to exercise my statutory rights under the Freedom of Information Act 2000 (FOIA) and the General Data Protection Regulation (GDPR) could be considered an undue restriction.”
When I put what had happened at Sellafield to the Information Commissioner’s Office this was the response from a senior press officer: “Everyone has the right to ask an organisation for copies of the personal information held about them. As well as the right to request recorded information held by public authorities.“
“There is no option in data protection or freedom of information law for organisations to remove these rights for an individual, and the ICO would intervene where requests were not being handled in line with the law. “
Sellafield are now saying: ” Sellafield Ltd have not breached any legal requirements, and involved ACAS as an intermediary.
“The individual is not subject to any restrictions preventing them from making an information request under either FOI or data protection legislation.”
That is correct but would not have been had the whistleblower signed the agreement.
Emma Mills; Partner at DLA Piper
I contacted Emma Mills , the partner with DLA Piper, who was paid by Sellafield, to draft the agreement directly, pointing out that she did not seem to know what the Freedom of Information Act says by drafting such a demand which appears to be outside the law. She has not responded.
Now there is another issue where the Nuclear Decommissioning Authority (NDA) lawyers have linked applications for FOI’s and subject access requests to a cost hearing against a whistleblower.
During a cost hearing against Alison McDermott two more lawyers, Jonathan Coley of Pinsent Masons and Rachael Levene, a barrister with Nine StJohn Street chambers, which accused her of being disruptive, abusive and vexatious in bringing a case against the NDA, cited FOI and DSAR requests as costing the authority a lot of expense. The accusation read to recover costs: “Submitted four Data Subject Access Requests and six Freedom of Information Requests over the last three years, the majority of which were complex and involved significant work and additional legal time and cost by the Second Respondent to answer. “
Rachel Leve KC at Nine St John Street Chambers
The £20,000 cost claim was thrown out by a judge at a recent hearing but again this claim shows total ignorance of FOI legislation.
The correct procedure if the NDA wanted to challenge the cost of the FOI requests ( it can’t charge people for subject access requests) would have been to raise the cost issue when she submitted them not tag the costs to the authority at a later hearing to intimidate the whistleblower. The NDA had granted the requests – it can’t then demand reimbursement later. Of course if it had at the time Alison would have the right of appeal right up to the Information Commissioner’s Office and knowing her determination would have had no problem in doing so.
I suspect that the behaviour of these lawyers to restrict people’s rights to use freedom of information and subject access requests could be more widespread than we know – because of the secrecy surrounding non disclosure agreements. It appears they are backed up by the Solicitor’s Regulation Authority if they do so but that is for another story.
I would make two points. If you are presented with an NDA containing such restrictions send it to the Information Commissioner’s Office before you sign it. Secondly if you have had attempts as a whistleblower to silence you by restricting your rights under this legislation let me know.
This picture is emblematic of the desperate straits some whistleblowers end up after they raise safety issues. They find themselves facing persecution by their bosses, horrendous costs they cannot afford for taking a case to an employment tribunal and put under extreme pressure by lawyers to sign an agreement taking away they rights to ever talk about the safety problem again and in this case lose their legal right to put in a Freedom of Information request or Subject Access Request to Sellafield for the rest of their life.
David Peattie, chief executive officer of the NDA Pic credit: gov.uk
This picture was sent as a last gasp plea to David Peattie, chief executive of the Nuclear Decommissioning Authority; Euan Hutton, chief executive of Sellafield; David Vineall, Sellafield’s group chief people officer, the Office for Nuclear Regulation and Claire Coutino, former Tory secretary of state for energy security. Only Claire Coutino expressed concern enough to want to meet the whistleblower but she was persuaded by her civil servants not to do so. We now have a new energy secretary, Ed Miliband following Labour’s landslide election victory, and I am planning to contact him to draw his attention to how whistleblowers are treated at Sellafield.
Ed Miliband, Labour’s new energy security secretary
To protect his privacy I am not naming the whistleblower after publishing such a personal and disturbing picture. But another source thought it was in the public interest to share a large file of emails and documents which reveal his correspondence and the reaction of the most senior figures inside Sellafield and the NDA.
The man involved was a loyal Sellafield employee for decades- in a potentially highly dangerous nuclear waste site where over 140 tons of plutonium is stored including from nuclear military waste warheads – and he was one of a large number of people employed to secure safety at the plant.
Some eight years ago he began to raise safety issues leading to what is said to be a highly critical issue. An email sent to the Office for Nuclear Regulation, the watchdog body, outlines his story.
After raising this at a whistleblower pre meeting in 2022 followed by a meeting with the former chief executive, Martin Chown, he suddenly found he was subject to an internal disciplinary inquiry by Sellafield based on the bogus claim that he had brought alcohol on the premises which is strictly forbidden at Sellafield. Terrified that they would try to pin this false claim on him, the employee voluntarily went to a local police station and submitted to a blood test, which revealed that he had zero alcohol in his system.
Euan Hutton, chief executive of Sellafield Pic credit: Gov uk
When he challenged this pointing out that this could be verified by the plant’s security cameras it was found that the film when he entered the plant had been “inadvertently wiped “. If this is correct, then this is terrifying lapse in security for Europe’s most dangerous nuclear site and fuels existing concerns about Sellafield being prosecuted for criminal offences for IT breaches. An inquiry under his senior manager, concluded against him and he was served with a ” final written warning.”
The then HR manager, Emily McDonnell, who claimed she saw the employee drinking alcohol on site, is notably the same individual involved in Alison McDermott’s whistleblowing case. McDonnell accused McDermott of poor performance, but her word document supporting this claim was missing. At McDermott’s ET hearing, it was revealed that McDonnell had written her complaint letter on a personal computer and “forgot to save it,” leading the ICO to rule the letter unlawful. This pattern is striking: in both cases, McDonnell made accusations with evidence that was either missing or questionable. Ms McDonnell now holds down a senior HR role at BAE systems in Barrow in Furness – I wonder if her new employers are aware of her involvement in these two key cases?
David Vineall, human resources director, Sellafield. Pic credit: gov.uk
The employee decided to go to an employment tribunal claiming detriment under the whistleblowing legislation. But after a one day preliminary hearing as a litigant in person he found it too much.– at the forefront of his mind was the also way Sellafield relentlessly pursued Ms McDermott for costs for three years, without remorse – see link here.
He told the Office for Nuclear Regulation: ” I gradually realised that I was woefully ill-equipped, both psychologically, and in terms of the necessary skills, and expertise to present and argue my case. The remorseless pressure from Sellafield Ltd was understandably taking its toll, and after a prolonged period of relentless pressure, including sustained pressure to sign a highly questionable, and restrictive COT3, ( equivalent to an upgraded non disclosure agreement) I capitulated and withdrew my Employment Tribunal claim, I could not face the prospect of facing a judge, and Sellafield Ltd.’s QC in court.”
Emma Mills, DLA Piper Pic credit: DLA Piper
So he withdrew his claim and was immediately served with a costs order for £14,000 so Sellafield could recover the costs of the hearing. The woman solicitor behind both the costs order and the non disclosure agreement was DLA Piper lawyer, Emma Mills. She is the same lawyer who assisted barrister Deshpal Panesar in the costs case against another Sellafield whistleblower, Alison McDermott. In that case, Judge Robertson dismissed all the grounds used by Sellafield and the Nuclear Decommissioning Authority against McDermott to recover costs and refused to grant any of the £20,000 claimed, stating there was no basis for Panesar’s claim that McDermott had acted dishonestly. (see link here)
The papers show how much Emma Mills was claiming. She was paid £243.14 an hour for attending the 2.6 hour hearing, £232.22 an hour for preparing the case and another £243.14 an hour for dealing with other matters connected to the case. Altogether she earned over £8600 and the whistleblower was expected to pay the bill.
Banned from making FOI and subject access requests to Sellafield
She was also behind the drafting of the highly restrictive non disclosure agreement. As well as silencing the whistleblower it demanded he withdrew a complaint he had lodged with another standards regulator, the Chartered Institute of Personnel Development about HR staff. This came after Ms. McDermott being fired after she submitted a report in 2018 highlighting serious dysfunction in the HR department, raising questions about what they are trying to hide about HR operations. Under it his right to use freedom of information and subject access reports about Sellafield was banned. I quote he was required “to withdraw any and all outstanding data subject access requests and/or Freedom of Information requests” and not pursue any further grievances.
As he said: “A COT3 that limits my ability to exercise my statutory rights under the Freedom of Information Act 2000 (FOIA) and the General Data Protection Regulation (GDPR) could be considered an undue restriction.” He also wrote to David Vineall, Chief People Officer at the NDA (Sellafield’s governing body) – how could he possibly condone the employee being told that he could not speak to his own regulator, the CIPD?
Driven to despair after reaching out to the most senior people at the NDA, including Group People Officer David Vineall, the CEO of the NDA, Peattie and the CEO of Sellafield, Euan Hutton, he was left without support. Hutton refused to intervene, claiming he could not halt the legal process for costs. On November 16 last year, following numerous emails to Hutton that highlighted his acute distress and pleaded for the withdrawal of the costs threat, he self-harmed. Hutton maintained it was a matter for the lawyers. Even after top officials and Ms. Mills saw photographic evidence of his distress, no immediate action was taken.
He said: “Following my self-harming incident, it took Sellafield Ltd nearly two and a half months to withdraw the ET court costs application order. This delay can only be seen as a deliberate attempt to exploit my vulnerability, and extract a concession. Sellafield Ltd.’s delay in withdrawing the threat of court costs unnecessarily prolonged my mental anguish, but they were not finished with me”.
He was informed this year by Manchester Employment Tribunal that Sellafield had withdrawn it costs threat.
But then he was left at home, cut off from access to Sellafield and had his enhanced sick pay withdrawn by his line manager. His manager is insisting he should have a voluntary medical check with the company to see if he is ” fit for work”. Sellafield are now saying he cannot cope and from April 24 this year he has received no money from the public company.
“My manager has now placed me on involuntary sick leave, and against my will. This action is particularly concerning as he cited extracts from my emails relating to the fact, I felt unable to cope, and inappropriately linked it to my disability as justification for placing me on sick leave.”
“My doctor has diagnosed work-related chronic stress, and is in agreement that Sellafield Ltd are responsible for my chronic medical condition. My condition now impacts every aspect of my waking life. I am already on medication to manage my condition, even so, I am constantly anxious and in a state of worry, finding it ever harder to concentrate, or sleep. The stress and anxiety are socially debilitating, and over time I have become ever more cynical, and I have largely withdrawn from friends, avoiding company and socialising.
“At times I cannot see a way forward, and feel helpless, and this feeling of dread has intensified over time. I don’t know where to turn for help, and who I can trust. I regard the constant reminders of where I can get help from Sellafield Ltd, as suspicious and disingenuous.”
In the meantime the bosses in charge of Sellafield say it is a wonderful place to work. In various YouTube videos, Euan Hutton, the chief executive and former mental health champion, espouses the importance of treating people with kindness, yet his actions towards this employee are anything but. He says that “kindness is putting in the time to think about how different people act differently, that’s what kindness is all about”.
A spokesman for Sellafield faced with an article in The Guardian about the toxic culture there, published last December, just after this employee had self harmed said: “There is no place for bullying and harassment at Sellafield. We do not tolerate it and where we find it, we take action. If anyone has information related to employee misconduct we urge them to come forward so we can investigate.
“We’re committed to ensuring all of our employees are respected, included, and able to perform at their best.
As for the protective disclosure about nuclear safety by this employee as far as I know nothing has been done about it.
Taxpayers left with a £1 million bill as whistleblower Alison McDermott wins case not to pay nearly all “unsafe” costs
Sellafield and the Nuclear Decommissioning Authority were all but humiliated in a court judgement in their second attempt to get costs against whistleblower human resources consultant Alison McDermott for exposing bullying and alleged sexual harassment at the plant.
The Nuclear Decommissioning Authority (NDA) and Sellafield failed entirely to get any costs for its main contention that Ms McDermott had acted ” unreasonably” throughout the case. The only award for costs was £5000 shared between Sellafield and Heather Roberts, Sellafield’s human resources director, where the tribunal believed Ms McDermott had been unreasonable in alleging crucial metadata was ” tampered with” by a DLA Piper lawyer, Emma Mills, acting for both of them.
I watched the hearing and it was very clear that Alison McDermott, appearing as a litigant in person with no legal representation, was cool, collected and precise in putting forward her case why she should not pay costs while the opposing highly paid legal team were making absurd over the top claims against her and defaming her character. No wonder these expensive lawyers lost the case and the plot.
The long running case has cost the taxpayer around £1m to bring through the tribunal system and this last costs hearing alone landed Sellafield and the NDA with a £100,000 bill for the taxpayer just to recover £5000. Her findings in her report, commissioned by Sellafield itself, have made national news in the UK and Norway, because it raises nuclear safety issues.
Judge Robertson was critical of the two barristers acting for Sellafield and the NDA and the way they handled the case.
Rachel Levene KC Pic Credit: Chambers and Partners
He found Rachel Levene, who acted for the NDA, had failed to produce any substantive arguments that Ms McDermott should meet £20,000 of the costs. The £3000 a day barrister tried to argue that Ms McDermott was misconceived in bringing the case, had lied in her evidence and ” deliberately exaggerated her evidence” throughout the proceedings. This was rejected by the judge. She put forward six allegations against her which were all rejected for not being specific enough.
He said “Ms Levene couches her allegations in the most general terms. As to allegations (1) and (4), she makes no specific case about the unreasonableness of the claimant’s complaints to the solicitors’ regulatory body or her Freedom of Information or Data Subject Access Requests or why such matters, which did not arise in the course of the proceedings, should lead to a costs sanction against the claimant in the proceedings.As to allegations (2), (3) and (6), Ms Levene makes no case that any specific applications for disclosure against the second respondent were unreasonable. She makes no case as to why the application to strike out the second respondent’s response based on failures in disclosure was unreasonable. She does not explain in what specific ways she contends that the claimant’s amendments to her claims were unreasonable.
The judge also accepted that Ms McDermott was right to turn down an offer of £160,000 to drop the case from the NDA- which Ms Levene tried to make as an example of “unreasonableness”.
Deshpal Paneseer KC Pic Credit: Old Square Chambers
Judge Robertson was also critical of Sellafield’s barrister, Mr Deshpal Paneseer, KC, from Old Square Chambers, who also attacked Ms McDermott for being ” fundamentally dishonest” only using more extravagant and denigrating language. Despite the EAT judge previously saying Ms McDermott was not dishonest he persisted un this. He also contended that her case had “no prospect of success” from the start and that she should not have made serious allegations against very important people.
The judge ruled:” The Tribunal was not persuaded by Mr Panesar’s assertion that the claimant’s allegations were particularly serious because of the standing of the individuals about whom they were made. All allegations of whistleblowing or victimisation are serious and there was nothing unusual about the individuals in this case.( my emphasis) Mr Panesar KC made too much of this. Second, Mr Panesar KC submitted that the claimant had been untruthful in multiple fundamental regards…..But the Tribunal has not found that the claimant pursued claims had no reasonable prospect of success and the first and third respondent’s second application for costs fails.”
One key ruling from this tribunal is that Judge Lancaster, who heard the original case , said she was not a whistleblower. This hearing reaffirmed that one of her complaints about sexual harassment was a protective disclosure – confirming she was a whistleblower. Judge Philip Lancaster’s attitude towards women is also under fire as he is facing complaints from women who have appeared before him at previous employment tribunal hearings.
This was the second time Sellafield and the NDA had tried to get costs from her – even after a High Court EAT judge had already ruled that the costs imposed at a previous hearing were “unsafe” so the nuclear bodies should have known they had little chance of success. As it is the money they have recovered is not even enough to pay for a day of Mr Paneseer’s charges which run at £5500 a day.
There is an extraordinary twist over the metadata Sellafield and Heather Roberts were awarded costs of £5000 against Ms McDermott for alleging their lawyer had ” tampered with it”. The metadata produced at the last minute in the tribunal case after Emma Mills, a DLA Piper oawyer said she had overlooked because of an oversight.
The metadata included criticism of Ms McDermott had been produced on the home computers of Sellafield staff – putting at risk the security of the nuclear plant. A complaint to the Information Commissioner’s Office led to the criminal prosecution of Sellafield and it was found guilty this week.
Hubris of the directors
Frankly this whole proceeding against Ms McDermott by Sellafield and the NDA shows the hubris of the directors of both organisations. The lawyers must have been encouraged to over-egg their case against her, leading the judge to throw it out. Any sensible organisation already warned by another judge that the costs were ” unsafe” would have had cause to think again. Instead they ploughed ahead because they knew the taxpayer would foot the bill. I also think this was a deliberate ploy to cause more distress to Ms McDermott because they hated her findings about the way the nuclear waste plant was run. It may also be aimed at frightening anybody wanting to raise issues like sexual harassment, bullying and nuclear safety. This is not a good place for any business, let alone one dealing with such dangerous materials as nuclear waste.
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.
Westminster Confidential 