A potentially ground breaking case bought by whistleblower Alison McDermott, a former consultant to the nuclear reprocessing plant at Sellafield, began a three week hearing at Leeds Employment Tribunal this week.
The case of McDermott versus Sellafield, the Nuclear Decommissioning Authority and former Sellafield HR director Heather Roberts has been brought under the Public Interest Disclosure Act 1998 – also known as the Whistleblowers’ Act.
Alison McDermott, an HR professional and diversity specialist, claims that the sudden termination of her freelance contract in October 2018 by Sellafield was linked to her protected disclosures containing evidence of systemic bullying, and racist and sexist incidents at the Sellafield site in Cumbria. The original story was reported in BylineTimes
Since the report came out the BBC did an investigation into what it called toxic bullying, homophobia, sexual harassment and racism at the nuclear plant.
At the beginning of hearing Employment judge Philip Lancaster told the tribunal: “This, of course, is not a public inquiry into an alleged toxic culture at Sellafield and it is certainly not a forum to investigate specific allegations of improper behaviour on behalf of named individuals.”
The case has been complicated by one of the organisations fighting her, the Nuclear Decommissioning Authority, changing its stance and is distancing itself from Sellafield. More will come out later in the case.
Ms McDermott faced aggressive cross questioning of her stance by Deshpal Panesar QC, representing Sellafield and Ms Heather Roberts, the plant’s former human resources director.
” I hope you’re not going to tell me we’re going to start letting women in burkas in here”- HR director
Ms McDermott was paid £1,500 a day – the same sum paid to previous consultants Capita -to monitor equality, diversity and inclusion at the nuclear fuel reprocessing and decommissioning site in September 2018.
Mr Panesar pointed out that she had taken no action when she first met Heather Roberts who is said to have told her “”I hope you’re not going to tell me we’re going to start letting women in burkas in here.” He said this was a reference by Ms Roberts because of security at the plant where people had to have photo passes. She said she was horrified by the reference but did not raise it with her because it was their first meeting.
Yet later after she had investigated other complaints she had pressed for a formal inquiry into a series of complaints and allegations about bullying, homophobia and sexual harassment. He accused her of ” weaponising” the issue at the plant.
Ms McDermott denied this,
She said Ms Roberts then asked her to take part in a covert investigation to “flush out” issues raised in the report, but she refused and advised her there needed to be a formal investigation.
Mr Panesar suggested she had agreed to take part in an undercover investigation, using focus groups to question staff.
Just before Christmas I carried a blog on a tribunal held in Croydon looking into allegations of sexism and racism brought by Usha Prasad, the sole woman cardiologist employed by the Epsom and St Helier University Health Trust. The case centred round an anonymous letter by a junior doctor who believed she put patient safety at risk and sent it to the chief executive, the Care Quality Commission, the General Medical Council; Jeremy Hunt, then secretary of state, and one of her patients.
She lost the case at a bizarre hearing presided over by employment judge Katherine Andrews which would only discuss whether the letter was racist or sexist.
But now two very eminent cardiologists Professor Jane Somerville and Dr David E Ward, have come forward to speak out in her defence – and raise much wider issues about how our National Health Service is being run and how trusts are using taxpayers’ money to pay large sums to lawyers to silence people who raise uncomfortable issues they would rather brush under the carpet.
Professor Jane Somerville, now 87, is one of the country’s leading cardiologists. She recently was awarded the World Heart Federation Award for Outstanding Contribution to Cardiovascular Health for defining the concept and subspecialty of grown-ups with congenital heart disease (GUCH) and being chosen as the physician involved with Britain’s first heart transplantation in 1968.
David E Ward has recently retired as a cardiologist at St George’s Hospital, in South London.
This is Jane Somerville’s detailed comment:
“There are many serious problems that are illustrated from this sad report of the ruining of a young doctor’s career as a cardiologist. She was an obvious target for bullying, harassment, and victimization by management at all levels. Why? Because she was Asian (foreign), small and female. This is such easy picking for those in charge to establish a continuous stream of it as indeed is shown over years.
“What is of more concern is the failure of the regulatory bodies and support services on which we have been brought up in medicine to believe they will be there for us to help give advice and support when in need. Just to name a few involved in this case: BMA, legal representation, GMC, MPA or MDU and indeed, the civil law itself. This is particularly important as the offending trust can afford on taxpayers money to engage the best advisors and the young doctor cannot afford to enlist such help.
questioning integrity and fairness of the judiciary
“Now from this case, one is forced to question the integrity and fairness of the actual judiciary. This is something one hopes in a civilised country one would never need to do. However in this case it is clear to assume that what has been reported is true, that the judge was biased against Dr Prasad with more than one example and did not allow relevant evidence (letters) to be shown.
“It is clear from the beginning of this case which started with simple complaints related to poor bureaucratic and system management which was influencing safety and comfort of patient management and continuing a few months later with acceptance from the trust with anonymous letters from her junior colleague and unacceptable behaviour in contacting one of her patients, that the trust was not interested in being even handed to her and worse, wanted to get rid of her.
” In these current times of enormous difficulty and pressure in the NHS where it is clear that junior staff and nurses are needed and should be valued and cared for, that one must wonder why anyone would want to work in this trust or other trusts who have shown similar behaviour, victimising a young useful doctor. Despite what claimed, doctors who draw attention to something wrong for patients or staff safety (whistleblowing), have little or no protection in the bullying Trust.
The Department for Health with all its talk needs to address this matter urgently and stop just giving lip service to the excellent recommendations (Sir Robert Francis QC) that have been made to them. They must be made responsible for this bad behaviour by trust managers which alas is not unique to Dr Usha Prasad.
Dr David E Ward
Dr David E Ward commented earlier on my blog as aceofhearts44. He is now happy to repeat his view in his own name.
“I know Dr Prasad as friend and colleague. I and a senior eminent British cardiologist have been supporting her cause for sometime. It is astonishing that what was initially an anonymous complaint has led to a chain of events culminating in the dismissal of a small, female doctor of Asian descent. It smacks of bullying, victimisation and other behaviours doesn’t it? Something is seriously amiss in this story. It needs to be exposed. It’s heartening that a respectable journalist has taken an interest (we tried unsuccessfully to get others involved). Let’s hope justice is done. Sadly I’m not optimistic. We will continue to support Dr Prasad in any way possible.”
Something seriously wrong in the NHS
These are not the only people who are concerned. I have had a number of people contact me – some in confidence – who are raising similar behaviour elsewhere – and want me to look into other cases. Since this is not a mass circulation blog – with the exception of the campaign I have backed for justice for the 1950s born women who are having to wait another six years for their pensions – it suggests to me that there something seriously wrong in the NHS and needs a thorough investigation. Otherwise I would not have such a strong response.
Last week by Zoom I attended a tribunal hearing – just one in a long running saga between the Epsom and St Helier University Trust and their former consultant, Dr Usha Prasad.
This dispute which is by no means over – she has already had one employment tribunal, one employment appeal tribunal, a reference back to the original employment tribunal – and has still to go to a General Medical Council hearing and an another tribunal over her unfair dismissal claim.
The hearing took I attended just one day but it felt to me that I had just stepped into an unreal world of interminable hospital politics. The issue goes back to 2012 and won’t be settled until 2022. And all this, by the way, is being funded by the taxpayer using NHS funds.
Dr Usha Prasad is a well qualified cardiologist who has been popular with patients but ran into difficulties with staff at the trust and complained she was subject to gender and racial discrimination, bullying and harassment. There are also whistleblower issues which are yet to come out at another hearing.
Three years ago she featured in the current trust’s chief executive’s report for receiving a Patient First Gold Badge award for giving ” a wonderful extra five years of life” to an 81 year old patient suffering heart disease. She is pictured here with chief executive Daniel Elkeles.
Behind these happy scenes however all was not well. Usha felt she was not being treated well by some of her fellow male colleagues and relations between her and her junior doctor Dr Aran Kumar Perikala were strained.
Anonymous letter sent to Jeremy Hunt
The centre of her complaint surrounded an anonymous letter which turned out to have been sent by him in 2015 to Daniel Elkeles, the chief executive, the Care Quality Commission, the General Medical Council, and to Jeremy Hunt, then health secretary and to one of her patients. It was signed as representing the entire cardiology team at St Helier Hospital and made very serious allegations that Dr Prasad was putting patient safely at risk.
She saw this attack by a fellow Indian doctor as sex discrimination and also as racist. It went to an employment tribunal headed by employment judge Katherine Andrews (more about her later) and her complaint was rejected. She appealed to an Employment Appeal Tribunal who upheld three of the letters but said that sending an anonymous letter to a patient and to Jeremy Hunt was going too far. The EAT ordered it to be referred back to the employment tribunal which held a hearing last week.
The hearing was unbalanced from the start. The trust was represented both by a barrister and a solicitor at enormous public expense. She appeared as a litigant in person ( funding herself) but was helped by Philip Howard ,a part time consultant at St Helier, who acted as Mackenzie friend, a pro bono role.
The part time judge, Katherine Andrews -a solicitor – was appointed as an employment judge by Chris Grayling when he was Lord Chancellor in 2013. Coincidently Grayling is also the Tory MP for Epsom and Ewell and is familiar with the workings of his local health trust.
Judge rules clinical judgement is irrelevant
From the start the judge brusquely limited the hearing to the contents of the letter and nothing else. Two other consultants at St Helier, Dr Sola Odemuyiwa, and Dr Ranjit Shail, a consultant physician, who wished to testify about Dr Prasad’s abilities were ruled as ” irrelevant” by the judge as they had no detailed knowledge of the letter. She ruled as ” irrelevant” any discussion about the clinical judgement of Dr Prasad. An issue that her brother in law, Dr Anand Kamath, working as a NHS dentist had committed suicide after being bullied by a primary healthcare trust over a complaint about his record keeping ,when this started, was also deemed to be ” irrelevant ” by the judge.
This left Philip Howard a very limited role to help defend her. His description of the circumstances of Dr Perikala writing the letter were illuminating. He told the hearing that he wrote the letter while all the other consultants were on holiday, did not consult them about it and paid a ” rare” home visit to one of her patients without her knowledge. He was only unmasked when the chief executive thought the entire cardiology department were of that view and other consultants objected. He told the tribunal that the patient had received excellent treatment and had no objections.
You would have thought that he would be the key witness that should be cross examined about why he acted alone and what his motive was. But the hospital trust’s lawyers did not call him and the judge ruled that as it was his belief it didn’t matter whether he was right or wrong. In other words the man can say anything he liked to a lot of important people and as long as he believed it, it didn’t matter a jot.
Not a level playing field
The trust has taken the matter to the General Medical Council where his behaviour could be questioned and certainly the issue of clinical judgement will not be brushed aside there.
The judge ruled against her but she has asked for the whole matter to reconsidered because she has received new information. Some of the time was spent arguing that she had missed legal deadlines to present new information. Given one side is using full time professional lawyers – and she is having to bring a case while still working elsewhere for Mid Yorks Health Trust – on loan from Epsom and St Helier University Trust. – it is hardly a level legal playing field.
Since the first tribunal hearing in 2017 she has effectively been suspended by the trust on full pay and faced losing her job. There are still two hearings to go.
One has to ask why the Epsom and St Helier University Health Trust is spending so much time and taxpayers money on this protracted dispute rather than using the cash to treat patients. When I earlier raised this with the trust they said they didn’t discuss issues about individuals working for them. They have also refused to give me details of how much taxpayer’s money they are spending on disputes.
This story is not over and I shall return to it when there are more developments.
Tucked away in a recent National Audit Office reporton the NHS and social care regulator, the Care Quality Commission, is the extraordinary statistic that the number of whistleblowers who tipped off the regulator fell by a staggering 16 per cent to 7452 in 2016-17. That is one in six fewer whistleblowers than the previous year. See paragraph 2.19 of the report.
The figure compares with 153,000 members of the public – an increase of one per cent – expressing concerns about services during the same period.
I have written about this in Tribune this week.
And the latest figures come after a report by Robert Francis QC to Jeremy Hunt, the health secretary,which was highly critical of the way some had been treated after they made a complaint.
In 2015, Francis reported widespread severe victimisation of staff by senior management when they spoke up for patients. Francis recognised that sacked whistleblowers are blacklisted and recommended a re-employment scheme but nothing seems to have come of it.
His most substantial recommendation was for a National Guardian to protect staff. This led the CQC to create a part time post with no powers. The first appointee, Dame Eileen Sills, quit before starting.
Since then Dr Henrietta Hughes . a GP has been appointed as National Guardian, on a four day week. And according to the CQC yesterday marked her first year as the National Guardian for the NHS with the publication of her first case review report and her annual report highlighting the work of Freedom to Speak Up Guardians.
The one case review she published covered Southport and Ormskirk Health Trust which has the unenviable reputation for bullying and discriminating against black and ethnic minority staff , a dodgy appointments system favouring some people against others and an attitude of not bothering when staff raise concerns about patients. This might sound familiar incidently for those who have followed my articles on staff practices at the Equality and Human Rights Commission but we should wait for the employment tribunals to see what happened there.
Dr Hughes has recommended a series of recommendations to put matters right – 22 in all – and there is promise from the interim chief executive of the trust, Karen Jackson, to act with a new senior management team. We shall see. Also this was a trial – how many reports are we going to get from her in future?
The National Guardian has also produced a series of high flown documents which sound terribly good in theory – but again I think we should wait to see what happens.
What has happened so far is that the appointment of a national guardian has coincided with a drop in whistleblowers telling the CQC when things are going wrong.
What we do know is that staff do lose jobs are blacklisted and get the reputation of being troublemakers. There is a website which covers 11 such cases here. All designed I suspect to cover up an NHS and care system creaking at the seams and not being adequately financed. I hope Dr Hughes does not turn out to be a convenient fig leaf for a service in trouble.
The BBC is an extremely adept organisation in managing news – especially involving its own organisation. So faced with the huge Jimmy Savile scandal it launched a review into how the culture at the BBC allowed such a monster celebrity to get away with such vile and nasty crimes for so long.It also had a remit to decide what child protection and whistle blowing policies were needed to prevent it happening again.
The Corporation appointed a very well respected former judge, Dame Janet Smith, who investigated the appalling misdeeds of murderer Harold Shipman – a GP who killed his own patients.
Her report finished over a year ago remains unpublished because of ongoing police investigations and no date has even been set when it will see the light of day.
But midway through her inquiry the BBC suddenly changed the remit of the inquiry – separating the investigation into what went wrong from the recommendations of what is needed to put everything right in the BBC’s present day child protection and whistleblowing policies.
This change in the terms of reference of an inquiry -midway through an investigation- looks pretty unusual to me. It hasn’t happened elsewhere to my knowledge. The reason given was the trial of BBC presenter Stuart Hall was delaying the report’s publication ( rather ironical given that it is still not published) and there was a need to get the BBC’s child protection and whistleblowing policies sorted out. In fact the trial was over within six weeks.
Nevertheless by then the BBC had appointed Good Corporation, a business ethics company, without tendering, to do the work on changing present day policies for an unknown fee.
The full saga is reported by me and Tim Wood on the Exaro website today.
The findings of Good Corporation’s report were made public last July on the very day the BBC issued its annual report and accounts which dominated the media. You can read them onExaro here. They are full of praise for the BBC’s current child protection policies and have little criticism of its whistleblowing policies.
Evidently the BBC is a wonderful place to work, women are rarely sexually harassed by men and don’t formally complain about this sort of thing anyway and with a few tweaks whistleblowing works perfectly.
What I find extraordinary is that the BBC seem to have got away with putting the cart before the horse over Savile. We have no idea what Dame Janet Smith has found out about BBC culture, though there are rumours that the report could be damning
Yet we have a business consultancy already acquitting the BBC of any problems over child protection and whistleblowing before we know. what the report says. How can the lessons be learned without first presenting the evidence.
Finally there is an extraordinary rub. All this information I have reported is in the public domain but has never been reported by the press which seemed to be asleep on the job. The change to the terms of reference and Good Corporation report findings were openly announced by the BBC. Yet no one was interested even though Jimmy Savile is the most prominent paedophile ever to have lived in the UK. Amazing.
One of the most precious freedoms for journalists is the protection of their sources. Now it appears the Cabinet Office is using an obscure bill – as part of the government’s drive to cut “red tape”- as cover to erode that freedom.
By changing the rules to allow the police to go to court to obtain reporter’s notebooks, pictures and computer files- without facing an open challenge from newspapers, TV, or even individual freelance journalists themselves – they are placing that protection in serious danger.
No wonder the Newspaper Society is up in arms and media lawyers are raising very serious questions. There is an excellent and elegant argument on the Inforrm blog by Gill Phillips,the Director of Editorial Legal Services at Guardian News and Media, about the dangers.
She rightly concludes: “This appears to be yet another backdoor attempt to limit and restrict essential and hard-fought journalistic protections.”
Bloggers should also be aware of this as it could affect them – and they will be much more vulnerable to a police raid- as they would be in a weak position to defend themselves. It is worth reading Vox Political’s blogon this point and taking action.
The official response according to my former colleague Owen Bowcott in the Guardian has been muted.
He reports :A Cabinet Office spokesman said: “Every measure in the deregulation bill is intended to remove unnecessary bureaucracy. Clause 47 would bring the Police and Criminal Evidence Act into line with other legislation in this area and would allow the criminal procedure rules committee to make procedure rules that are consistent and fair.
” However, the government has noted the concerns raised about this issue and Oliver Letwin is happy to meet with media organisations about this before the bill goes to committee.”
I think the government should go further and drop this now. It can hardly save much money and I think their motives in introducing this are questionable and undo good work under the Defamation act and by the Information Commissioners’ Office to protect journalists from interference by the police and the state.
I am reblogging this because it reveals an appalling attitude by Cumbria Police to prosecute those who exposed an outrageous expense claim by their new Conservative Police and Crime Commissioner,Richard Rhodes. Such an act is chilling responsible journalism and bullying the staff who rightly disclosed this. Why is there not a proper public log of his use of taxpayers’ money for expenses?
One cannot fail to be shocked by the way in which the Cumbrian police have dealt with those who leaked information to the press about the excessive expenses of their recently elected Police and Crime Commissioner. The Commissioner, Richard Rhodes, held a press conference in which he admitted that it was wrong to have incurred the cost of hiring a private chauffeur at the public’s expense, but then said he was not responsible for the decision to prosecute those who put the information into the public domain.
Knives out for A4e whistleblowers? Pic courtesy:snippits-and-slappits.blogspot.com
Today confidential evidence given to MPs on Parliament’s most powerful committee of MPs by a team of whistleblowers on fraud should have become public.
The whistleblowers- people once employed by two rapidly growing companies A4e and Working Links which are dominating the government’s welfare to work programme – spent two hours giving dramatic evidence in private to the House of Commons Public Accounts Committee last May.
The result of their information and a frankly complacent performance by Robert Devereux, the patrician permanent secretary, to the Department of Work and Pensions led to a damning report by MPs on the ministry’s stewardship of taxpayers’ money handed over to these profit-making companies.
As reported in Exaro News today ( see http://www.exaronews.com ) Tory and Labour MPs were disgusted at the ministry’s performance.
Margaret Hodge, the Labour MP who chairs the committee, said: “The DWP’s arrangements for overseeing and inspecting its contractors were so weak that vital evidence on potential fraud and improper practice was not picked up.”
Richard Bacon, Conservative MP and deputy chairman of the committee, said: “Encouraging innovation and fresh approaches is important, but so is ensuring value for taxpayers. Providers cannot be allowed to run wild and free with public money.”
Margaret Hodge; Agrred to withold whistleblowers evidence
But according to one of the whistleblowers it continued under the Tories. Eddie Hutchinson, former chief auditor of A4e, told the committee in his submission of “systemic” fraud and malpractice at the company.
Hutchinson, worked at A4e from October 2010 until May last year, and at Working Links before that. He described what he saw at both companies as “a multi-billion-pound scandal”. This we only know because of his evidence was leaked to the Daily Telegraph. A4e insist that this eveidence is not true and the new company is now wonderful.
Today we should have had a more rounded picture with new evidence from other whistle blowers. The draft report would have included the minutes of that meeting and with names redacted all the information.
But just days before publication the whistleblowers, according to a top source panicked and asked the chair, Margaret Hodge, to censor all their evidence.
Why? All the whistleblowers were happy to give evidence in public last May but some Tory Mps, Chris Grayling, then the minister for work, and A4e were desperate for the public to know nothing. They stopped the public hearing. Billions of pounds of new contracts were at stake. Now ministers and A4e have got their way. We are none the wiser. Have the whistleblowers been threatened? Did they decide they had lied to the committee? Or is there a blacklist in the auditing profession to prevent people who blow the whistle from getting fresh work?
Today is a bad day for transparency and democracy when the most powerful committee in Parliament that holds the government to account cannot publish the facts. The government is making matters worse by changing the law protecting whistleblowers to make it even more unlikely they will risk their careers at the moment.
A4e as well should have been allowed to give evidence to the committee as well as the rather arrogant Mr Devereux. The company could then have put its case and been questioned on its performance. For those interested in the full or should I say half redacted report, it is here (http://bit.ly/PKPO9a ).
MPs begin to debate the government’s new Enterprise and Regulatory Reform bill today (monday). Buried in this legislation in Clause 14 is a plan to limit people with employment contract disputes using the whistleblowers law.
The reasoning behind it is explained in the latest House of Commons Library report on the bill. It says:
“In March 2012, the Department issued its annual employment law review which stated: It has come to light through case law that employees are able to blow the whistle about breaches to their own personal work contract, which is not what the legislation (Public Interest Disclosure Act (PIDA)) was designed for.
Clause 14 would ensure that only disclosures that are in the public interest would attract protection under the whistleblowing provisions of the Employment Rights Act,1996.”
Superficially this sounds quite reasonable. Whistleblowing legislation should not be used for personal contract disputes. But the way the government is going about this it could sound the death knell for potential whistleblowers just at a time when they are most needed.
Think for one second. A company gets a complaint from a whistleblower about a nefarious practice. What better way to frighten a whistleblower than by going to the courts claiming this is not in the public interest and demanding a hearing before a judge. The company can then rubbish the whistleblower using the absolute privilege afforded by court hearings for maximum publicity by claiming the complainer is a bad worker, in breach of contracts etc – damaging the whistleblower’s reputation.
There then follows a long dispute about what should be a public interest test – since this until now is only used in Freedom of Information Act disputes in tribunals – with different judges defining it in different ways. As Lord Touhig, a whistleblower champion said in a Lords debate: ” This would make a field day for lawyers.”
But there could be another agenda. The government’s fast track privatisation programme for public services has already led to whistleblowers revealing bad practice as shown in the recent private hearing of the House of Commons Public Accounts Committee. There I am told two Tory MPs put pressure on the committee not to hear in public whistleblowers’ allegations about bad practice in A4e, the private work provider, which has £200m of Department of Work and Pensions contracts.
The next day the Daily Telegraph leaked some of their evidence and Chris Grayling, the minister for work but one suspects sympathetic to A4e, used an appearance on BBC Newsnight to cast doubt on the motives of the whistle blowers. Has he got DWP files on them I wonder or did A4e brief his press office or special adviser?
Now the Guardian’s splendid Rajeev Syal is reporting that Osita Mba, who blew the whistle on former Revenue chief Dave Harnett’s secret tax deal for bankers Goldman Sachs, has found himself being investigated by the criminal investigations unit of Revenue and Customs. (see http://bit.ly/Mo5oXF )
It seems to me that people should back the campaign by Cathy James, chief executive at Public Concern at Work (http://www.pcaw.org.uk ) to stop this piecemeal change. At the very least the clause should be redrafted to define what should be excluded as a personal contract rather than submitting everything to a public interest test. Otherwise the public have every right to believe that the government has something very different in mind.