By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 25 January 2018
The case of vindicated whistleblower Helen Rochester illustrates the weakness of protection for UK whistleblowers.
The current UK whistleblowing law, the Public Interest Disclosure Act (PIDA), came into being in 1998.
It has not upheld the public interest nor protected whistleblowers.
It has not ensured that whistleblowers’ concerns are properly investigated and acted upon. It has failed to give many whistleblowers justice and it has allowed countless wrongdoers off the hook.
Whistleblowers who are unfairly treated by employers may make a claim to the Employment Tribunal under PIDA.
The Employment Tribunal system is meant to be user-friendly so that ordinary people can represent themselves and access justice.
In reality, employers with deeper pockets outgun employees. It is not unknown for whistleblower litigants in person to find themselves pitted against QCs.
Whistleblowers must also run the gauntlet of several tests:
- They must show they made the right disclosures to be considered a whistleblower within the meaning of PIDA
- They must show they have raised their concern in the right way
- They must show that they have suffered detriment
- They must show that the detriment was due to the whistleblowing
Whistleblowing cases often founder at this last test, with much benefit of the doubt given to employers.
The organisation Blueprint for Free Speech undertook a review of UK whistleblowing law against other jurisidictions, which highlights PIDA’s considerable flaws.
Helen Rochester and the complicit CQC
Helen Rochester, an experienced former nurse and care home whistleblower has added another example of PIDA’s failures to the already towering pile.
Rochester came into conflict with her former employer Ingham House Ltd, which runs Ingham House care home, where she was briefly employed as a Team Leader on nights.
Rochester claimed for whistleblower victimisation in the form of unwarranted referral to the Disclosure and Barring Service, unfair dismissal (this was a protective element of the claim: Rochester had actually resigned but her employer made a spurious, post hoc claim that she had been dismissed) and unlawful deduction of wages.
Rochester represented herself without a penny of assistance from anyone, against a legally represented employer.
She proved the facts of her case, but she still lost on the final hurdle of linking detriment to whistleblowing.
Rochester started working at Ingham House care home in April 2017 but resigned after a few nights’ duty because she was very concerned by what she had witnessed.
Immediately after resigning, she put her concerns in writing to both the care home and to the CQC about poor care standards and serious risk to residents’ safety. Rochester’s disclosure correspondence was impressive in its detail and precision.
Ingham House Ltd, the company which ran the care home, later maintained that Rochester had not resigned but had been dismissed. However, an Employment Tribunal preferred Rochester’s account of events.
Because the Tribunal determined in Rochester’s favour that she had resigned and had not been dismissed, accordingly, Rochester’s protective claim of unfair dismissal fell.
Ingham House also settled the claim for unlawful deduction of wages, albeit at the eleventh hour before the hearing.
Ingham House admitted that Rochester had made public interest disclosures.
The Employment Tribunal determined that Rochester had suffered a detriment because Ingham House Ltd had referred her to the Disclosure and Barring Service (DBS). This was because although the DBS rejected the referral and did not place Rochester on the barred list, the matter was left to lie on file for 10 years.
But crucially, the Employment Tribunal determined that this detriment was not due to Rochester’s whistleblowing.
This was because Employment Tribunal accepted Ingham House Ltd’s assertions that it had formed an intention to dismiss Rochester before she resigned and whistleblew.
The Tribunal concluded this despite:
- The Tribunal having in effect concluded that Rochester’s evidence was more reliable on the resignation v dismissal issue.
- The Tribunal accepting that:
“There is a strong chronological link between the protected disclosures made by the Claimant and the referral to the DBS.”
- The Tribunal accepting that the manager of the care home made the DBS referral as a result of Rochester whistleblowing to the CQC:
“We find that Ms Sterling would not have considered making a DBS referral if the Claimant had not referred the home to the CQC.”
- A lack of contemporaneous records to evidence Ingham House Ltd’s intent to dismiss Rochester:
“Ms Sterling did not make a note of her conversation with Ms Kemp. At some point she spoke to the other member of staff on duty, ‘Drita’, who had been present when Z had been given medication. She did not make a note of that conversation either, and no written statement was taken from Drita until 8 May, after the DBS referral had been made”
- A poor internal investigation by Ingham House Ltd and an inconsistent account of the allegations against Rochester:
“We find that the investigation that Ms Sterling had carried out into what had actually happened during the two nights in question was not as rigorous as it could have been. She failed to document a number of conversations that she had with employees. We have observed that the account she eventually provided to the DBS differs from the one contained in the written witness statement received from the employee, Drita, which is dated 8 May, after the referral had been made.”
- The local authority Safeguarding team not upholding Ingham House Ltd’s allegations against Rochester – it considered that Rochester had acted appropriately and no residents had been harmed
- A delay between the alleged concerns about Rochester, and the DBS referral. The Employment Tribunal accepted Ingham House Ltd’s explanation that the delay occurred because there was ‘a lot going on’ at the time. The Tribunal evidently failed to understand basic Safeguarding principles. It accepted the care home’s excuse that there was no urgency as Rochester was no longer working at that particular care home, when in fact putative risk to service users in general had not been mitigated.
Although the Tribunal judgment weighed the quality of the investigation into allegations against Rochester, it omitted to mention at all whether Ingham House Ltd investigated Rochester’s whistleblowing concerns.
This surely was relevant information when weighing whether the employer acted in good faith, or was covering up.
Indeed, the recommendations of Judge Sir Anthony Hooper to the General Medical Council on the handling of whistleblowing cases include important advice that the GMC should adduce the probability of vexatious regulatory referral partly based on whether the employer has properly responded to a whistleblower’s concerns.
There is of course also Rochester’s past history of entirely justified whistleblowing about another care home scandal, which caused the CQC embarrassment when its failings were reported by Private Eye in 2015.
Importantly, the Employment Tribunal concluded that Ingham House Ltd only referred Rochester to the DBS because the Care Quality Commission had suggested that it should do so:
|“18. On 20 April the Claimant wrote to the Care Quality Commission raising her concerns about the operation of the home. On the same day, anticipating the Claimant’s complaint, Ms Sterling wrote to the CQC setting out her account of what had happened.
19. CQC notified Adult Safeguarding Services at the local authority of the matters raised. Ultimately Adult Safeguarding took the view that resident Z had been medicated appropriately and that no residents had been harmed and they did not conduct an investigation.
20. On 24 April Beverley Deadman, an Inspector at the Care Quality Commission wrote to Ms Sterling acknowledging the information received and the action which the home had said it was going to undertake. She included this paragraph: “I suggested that you may wish to contact DBS (ISA) to report your concerns regarding this person if you felt the concerns were of a serious nature, and to ensure that all contact and emails, disciplinary action were logged and copies sent to identify a clear audit trail”.
21. We find that if Ms Sterling had not received this advice from Ms Deadman she would not have considered a referral to the DBS. Having received that letter and having previously spoken to Ms Deadman, she now considered whether to make a DBS referral. We find that she was not under any obligation to do so, but had a discretion to refer if she considered that the Claimant was at risk of causing harm to vulnerable adults.”
The CQC advised Ingham House Ltd to refer Rochester to the DBS despite knowing that Rochester had raised multiple serious care standards concerns about the care home. CQC also advised DBS referral without trying to verify whether there was any reasonable basis for these allegations.
Rochester filed a claim against CQC to the ET but this has been struck out on the basis that the ET had no jurisdiction. Rochester could in theory find other legal avenues to sue for negligence, but this would require funds that she has not got.
And has the CQC demonstrated that it has learned from the episode and specifically changed its processes, so that it will not harm and betray future whistleblowers in this manner?
Not even though this was the second time that the CQC had betrayed Rochester, having breached her confidentiality when she previously whistleblew about another care home.
As previously reported, the CQC failed to act upon Rochester’s concerns about Ingham House and did not even re-inspect the care home until she embarrassed the CQC by attending its public board meeting in June 2017 to question this failure.
Most importantly, the CQC did not re-inspect early enough in the morning to detect the institutionally abusive practices that Rochester had alleged were taking place on the night shift, and an FOI by Rochester showed that CQC is failing on a national basis to inspect care homes and hospitals out of hours.
Relevant to this, I will report shortly on how CQC wriggled out of accounting properly to a coroner who had concerns about national standards for night staffing in care home and hospitals.
The Rochester saga is not over yet. More of that another time.
On 4 November 2017 I wrote to the CQC manager who according to the National Guardian is leading a renaissance of CQC’s whistleblowing governance, and I requested that this work should involve whistleblowers. The answer was initially opaque, and then non-committal:
“Dear Dr Alexander
I am sorry if my response was not clear – it is my intention to explore what we do currently and what we should do in the future as part of my assessment of where we are, and that will include considerations of co-production as part of our approach to policy development.
Ursula Gallagher, CQC Deputy Chief Inspector, 16 November 2017
At the time of writing, there is still no sign that the bizarre CQC is transparently involving whistleblowers in re-designing its whistleblowing governance.
In all, serious injustices and cover ups will continue for as long as UK whistleblowing law is so weak, and whilst whistleblowing is handled primarily by lower, non-specialist courts.
Even in cases where whistleblowers are legally represented, there are often losses. Even where whistleblowers ‘win’, the compensation is very inadequate and they are left struggling. PIDA has been tested to destruction for twenty years. It is time to stop throwing good money after bad and to scrap it.
Whistleblowing cases are not simply matters concerning employment contracts between two parties. They are about matters that are crucially important to everybody, and they are often related to public safety.
For example, if the CQC et al had listened more to ambulance service whistleblowers, more might have been done to avert the horrendous ambulance crisis that is now unfolding: Whistleblower claims 20 people died where ambulances were late
The public deserves much better.
Politicians and the Law Commission resist whistleblowing law reform as transparency would result in a real transfer of power to the public.
The National Freedom To Speak Up Guardian has also refused to support Law reform:
“I do understand the views of campaigners who say that the current legislation requires reform. However, we are not currently seeking to campaign for changes to the law. Instead, we will be working collaboratively with a wide range of bodies to deliver a reformed NHS culture where freedom to speak up is ingrained and becomes ‘business as usual’.”
Letter from Henrietta Hughes, National Guardian, 16 February 2017
The above Department of Health and Social Care slogan, ‘Making Speaking Up Business as Usual,’ is empty fluff.
The Department of Health and Social Care et al contend that culture change is more important than law reform.
Imagine if crimes against the person were managed with culture change programmes and trite sloganising. ‘Murder isn’t nice’. ‘Make GBH history’. ‘Let’s not be naughty’.
The truth is that effective law drives culture change and shifts behaviour. Think seat belts. Think drink driving.
UPDATE 13 APRIL 2018
Over a year after rejecting a request from campaigners inviting her to support reform of whistleblowing law, the National Guardian asked me during a meeting on 27 March 2018 why law reform is important to whistleblowers.
This is my answer: