By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist, 22 February 2018
The government is reluctant to let go of gagging in the public sector. It is a useful political tool of control, and very handy when embarrassing policy failures need to be minimised and covered up.
The CQC has blatantly dragged its feet and effectively refused to regulate NHS employers’ abuses through the gagging of staff, including whistleblowers:
However, the NHS’ liberal use of secrecy clauses is causing karmic chaos with respect to the employment support scheme for sacked whistleblowers. Super-gagged whistleblowers cannot access the scheme because they cannot disclose all the necessary information as part of the application process.
NHS Improvement (NHSI) and NHS England have resisted seeking a government waiver. A government waiver is still needed as the latest workaround proposed by NHSI, as an alternative to a government waiver, is flawed.
I have asked the Chair of NHSI seek a government waiver and also that NHSI indemnifies any whistleblowers who decide to risk breaking gags on the basis of assurances obtained by NHSI.
The correspondence, including a draft letter by NHSI to NHS trusts about gagged whistleblowers’ participation in the employment support scheme, is provided below.
Chair of NHS Improvement
22 February 2018
NHS whistleblower employment scheme – provision for gagged whistleblowers
Thank you for your prompt response of 10 February 2018 to mine of 5 February 2018 on this issue, both copied below.
At a Design and Monitoring Group (DMG) of the Employment Support Scheme (ESS) on 19 February, NHS Improvement (NHSI) informed whistleblowers that its letter to trusts about gags was to be circulated the next day. I asked to see the letter and was advised that a copy would be shared after circulation. On 21 February NHSI decided to share a draft copy of the letter with the DMG and to invite comments.
I do appreciate the effort made to further accommodate the needs of gagged whistleblowers, and acknowledge that this matter predates your arrival, but NHSI’s draft letter does not appear to present a clear solution.
NHSI’s draft letter asks trusts to declare whether they have clauses in settlements that might prevent whistleblowers from applying to the ESS. Legally, trusts that have entered into mutual super-gags, cannot even reveal the existence of such settlement agreements.
Super-gags are usually mutual. Indeed, NHS Employers’ current guidance includes as standard, the use of a mutual super-gag in its template settlement agreement:
“1.2 The Employer shall use its reasonable endeavours to ensure that its directors, officers, agents and employees shall not divulge the fact of, negotiation, nature and/or terms of the Agreement except to its professional advisers in connection with the conclusion of this Agreement or where required by any competent authority or Court of Law or HM Revenue & Customs or as otherwise required by law.”
I am also concerned that NHSI’s draft letter to trusts lacks clarity and presents unfeasible risks to whatever meagre financial security, dependent on strict compliance with gags, is left to whistleblowers. Perhaps an opinion from senior Treasury lawyers may assist.
Notwithstanding, NHSI’s letter to trusts will not substantively move the situation forward. The NHSI ESS manager informed whistleblowers that NHSI was implementing the above workaround as it would “take too long” to implement a government waiver. However, I see no option but a government waiver because of the tight legal seals on super-gagged NHS whistleblowers. If a government waiver had been sought when I first raised it, with NHS England, in January 2017, and subsequently with NHSI in February 2017, we might not be in the position we are now.
I wonder if NHSI could:
- Seek a government waiver to release trusts and whistleblowers who are gagged and super-gagged. As both the Secretary of State and Minister of State have been vociferous past critics of gags in the NHS, I would hope that the Department of Health and Social Care would look on this favourably.
2013 report of the Public Accounts Committee, of which Mr Steven Barclay was a member, on on Confidentiality Clauses and Special Severance Payments
Article by Mr Steven Barclay from his constituency website: Uncovering £4m of secret NHS Payoffs to gag potential whistleblowers
- For those gagged whistleblowers willing to take the risk of applying to the ESS on the strength of assurances obtained from employers by NHSI, indemnify them against any further action by their former employers including any attempt to recover settlement payments.
Regarding the continuing lack of an employer pool to offer trial employment to sacked whistleblowers, as recommended by Robert Francis, please see my letter to NHS Improvement about the current state of play.
A properly established, safe pool of employers is a key and urgent need. Whilst NHSI says it has been making ad hoc arrangements for some of the seven whistleblowers taking part in the pilot phase (and I am aware that at least two of these people have so far had no offers of trial employment from NHSI), this is not a good basis for safe re-entry. NHSI itself accepts the principle that employers must be properly vetted, as the last thing that whistleblowers need is to be mistreated all over again. As you will see from my above letter to NHSI, not even a draft checklist for vetting employers has been produced yet, so it is hard to understand how exactly NHSI has vetted trusts that have been approached as part of the pilot phase of the ESS. I hope that NHSI can commit to a clear action plan for establishing an employer pool, with timescales for key tasks, as requested.
With best wishes,
Jeremy Hunt Secretary of State for Health
Steven Barclay Minister of State for Health and Social Care
NHS IMPROVEMENT’S DRAFT LETTER TO TRUSTS ABOUT GAGS AND THE NHS WHISTLEBLOWER EMPLOYMENT SUPPORT SCHEME:
“To Directors of HR/Workforce in NHS trusts and NHS foundation trusts
You will be aware that we are piloting an whistleblowing support scheme (WSS) for former NHS staff who have raised concerns and are trying to get back into NHS employment, as recommended in Sir Robert Francis’s Freedom to Speak up review. For further detail on the WSS please see attached briefing pack and the link to our webpage at https://improvement.nhs.uk/resources/freedom-to-speak-up-whistleblowers-support-scheme/.
We are advised that some former NHS staff who want to apply for the scheme believe they cannot do so as a result of clause(s) in their settlement agreements. This appears to be preventing access to the scheme for some relevant former NHS staff. We would therefore like you to advise us as to whether you have any clauses in settlement agreements with former employees which you would enforce, and which would prevent those employees from completing the WSS application process. Assuming not, this will then enable us to communicate that your trust would not take action against any former employees for divulging necessary information to complete an application for the scheme. The scheme application form is attached so that you can review the questions asked and documentary evidence required within the application process.
Please use one of the following sentences for your email response to
NHSI.firstname.lastname@example.org by Friday 23 March
1. The trust has no clauses in settlement agreements with former employees which we would enforce, and which would prevent those employees from completing the WSS application process.
2. Yes, the trust has clauses in settlement agreements with former employees which we would enforce, and which would prevent those employees from completing the WSS application process.
Any queries should be directed to Wendy Webster WSS Manager at NHSI.email@example.com in the first instance.
Separately, if you have not already committed your support to the scheme (see slide 6 of the attached briefing pack) I would encourage you to do so by contacting Wendy Webster at the email address above.
Maria Robson | Head of Trust Resourcing”
From: “HARDING, Dido (NHS IMPROVEMENT – T1520)” <*********************>
Subject: Re: NHS whistleblower employment scheme – provision for gagged whistleblowers
Date: 10 February 2018 at 13:55:09 GMT
To: Minh Alexander <********************>
Dear Dr Alexander,
Thank you for your email of 5 February 2018 and I note your comments and concerns. The issue of “gagging clauses” is under discussion between the Whistleblowing Support Scheme lead, Maria Robson and NHS Improvement’s legal advisers and as I shared in a recent meeting, consideration is being given as to how we can ensure that all whistleblowers can access the Whistleblowing Support Scheme.
We are hoping to be able to obtain confirmation from NHS trusts and foundation trusts as to whether they have any clauses in settlement agreements with former employees which would prevent those employees from completing the Whistleblowing Support Scheme application process. We intend to attach the scheme application form so that organisations can fully consider the questions asked and documentary evidence required within the application process. Where organisations confirm that there are clauses in settlement agreements that would prevent their former staff from applying for the scheme, we will then be in a position to follow up this issue with individual trusts and suggest proposed work arounds that ensure full access to the scheme by individuals. These work arounds could include for example, a written assurance that referencing the settlement agreement when completing the application form will not lead to any action by the trust against the individual.
Assuming the current internal conversations are satisfactorily concluded, we anticipate contacting trusts before the end of the month with responses required before the end of March 2018 to give organisations a realistic opportunity to check their records and consider their responses (with their own legal advisors if necessary) before replying. I understand you are a member of the Whistleblowing Support Scheme group, and Wendy Webster has advised that this will be a subject of discussion at the next meeting.
With regards to your concern regarding “a pool of NHS employers,” I understand that there have been discussions at the monthly Design and Monitoring Group meetings, outlining the three employer events during which NHS employers were invited to and did make commitments to support the scheme. The events were very well attended which not only raised the profile of the pilot schemes developed by NHS Improvement and NHS England but also encouraged employers to consider what support they could give to participants on the schemes including access to libraries, training, placements etc. Trusts within the locality of current pilot participants have been contacted directly to consider and offer opportunities within their organisations as part of the pilot scheme. The commitments already made by other trusts will be further explored as part of the development of the main scheme.
NHS Improvement and NHS England continue to work and engage with other organisations such as the National Guardians office, NHS Employers and the Care Quality Commission to address and resolve some of the barriers for whistleblowers resuming their careers.
We welcome and value your continued input and that of other whistleblowers to help us learn from the pilot scheme and develop a successful main scheme.
Many thanks and Best Wishes
From: Minh Alexander <********************>
Date: Monday, 5 February 2018 at 12:33
To: “HARDING, Dido (NHS IMPROVEMENT – T1520)” <********************>
Subject: NHS whistleblower employment scheme – provision for gagged whistleblowers
Chair of NHS Improvement
5 February 2018
Dear Ms Harding,
NHS whistleblower employment scheme – provision for gagged whistleblowers
I write to ask if you could kindly advise on NHS Improvement’s arrangements and plans regarding this important matter.
Gagging of staff with secrecy and non-disparagement clauses remains a widespread problem in the NHS, and many whistleblowers are forced into accepting compromise agreements as the only option available for total avoiding financial ruin.
Some trusts such as Mersey Care NHS Foundation Trust, Imperial College Healthcare NHS Trust, East Lancashire NHS Trust and Liverpool Community Health NHS Trust have revealed via FOI that they have super-gagged hundreds of staff through clauses in compromise agreements which forbid signatories from revealing the very existence of the compromise agreements. Mersey Care NHS Foundation Trust alone accounted for 443 super-gags over a five year period.
Robert Francis recommended in his report of the Freedom To Speak Up Review that the Care Quality Commission should monitor NHS employers’ use of compromise agreements, but the CQC has shown great reluctance and there is no evidence that it has done so.
Indeed, NHS Employers publishes a template for compromise agreements which include such super-gags.
NHS whistleblowers who are super-gagged may not talk about the contents of their compromise agreements or the existence of agreements. They may also be subject to clauses preventing them from contacting their former employer about employment matters.
This makes it impossible for super-gagged whistleblowers to access the NHS whistleblower employment scheme.
Both NHS England and NHS Improvement were warned about this long ago but failed to address this issue. This has compounded already very serious delay in establishing the scheme, despite the scheme being recommended as an ‘urgent’ measure by Robert Francis in February 2015. *
It is clear that neither body truly understands the issues or is willing to seek a much-needed government waiver. This lack of understanding has been evidenced by the fact these bodies have floundered and given very foolish, unfeasible advice when challenged about their lack of proper preparation.
I understand that you recently advised in a meeting that NHS Improvement believes it may be approaching some sort of legal fix.
I would be grateful if you could you give more information about NHS Improvement’s work in progress, who is leading it and what the timescale is for resolution.
For completeness I should also let you know that there is still no sign of
“of a ‘pool’ of NHS employers prepared to offer trial employment to persons being supported through the scheme”
as originally recommended by Robert Francis. This is despite repeated enquiries and corresponding assurances that NHS England and NHS Improvement were working to establish a pool. The most recent response from NHS England appeared dismissive of the need for a properly established, structured and fair system.
NHS England minimised the failure to establish a pool to date on the basis that as so few whistleblowers had applied, that it was possible to make ad hoc approaches to employers. This is not good equal opportunities practice, and serious concerns have already been raised about the scheme’s adherence to equal opportunities principles.
NHS Improvement has not so far commented in response to the most recent queries about the failure to establish an employer pool.
Dr Minh Alexander
*Robert Francis’ urgent February 2015 recommendation for the establishment of a scheme to support whistleblowers back into employment, page 153 of the Freedom To Speak Up Review report:
Beyond that, I believe that there is an urgent need for an employment support scheme for NHS staff and former staff who are having difficulty finding employment in the NHS who can demonstrate that this is related to having made protected disclosures and that there are no outstanding issues of justifiable and significant concern relating to their performance. This should be devised and run jointly by NHS England, the NHS Trust Development Authority and Monitor. As a minimum, it should provide:
- remedial training or work experience for registered healthcare professionals who have been away from the workplace for long periods of time
- advice and assistance in relation to applications for appropriate employment in the NHS
- the development of a ‘pool’ of NHS employers prepared to offer trial employment to persons being supported through the scheme
- guidance to employers to encourage them to consider a history of having raised concerns as a positive characteristic in a potential employee.”