By Dr Minh Alexander NHS whistleblower and former consultant psychiatrist 7 April 2018
An Employment Tribunal (ET) made a finding of Race Discrimination by Public Health England (PHE) against a senior doctor, Dr Femi Oshin Public Health Consultant, on 17 January 2017:
Dr Oshin found himself subject to a complaint, which he refuted, and he came into dispute with PHE over the way in which the organisation handled this matter.
Importantly, the ET concluded that PHE constructively unfairly dismissed and not only racially discriminated against Dr Oshin, but also victimised him for raising concerns about discrimination and for making a claim to the ET regarding the discrimination.
The ET determined that there had been ‘unconscious race discrimination’, ‘group think’ and ‘institutional racism’ by PHE.
Anyone who follows the fate of NHS employees in the ET will be aware of how rare it is for claimants to succeed. A huge number of cases against the NHS are simply withdrawn.
A 2006 DTI government survey of tribunal applicants found that employees typically reported deterioration of previously cordial employment relations after they raised issues of workplace race discrimination. It also found that:
“Claimants’ primary reason for taking their case was the pursuit of justice. They felt that their employer should be told they had been wrong, and they should be made to change their behaviour towards ethnic minority employees.”
But discrimination cases, especially race claims, are particularly difficult to win. A 2013 BIS report noted “Claimants were most likely to be successful at tribunal in Wages Act cases (14 per cent) and least likely in discrimination cases (three per cent).”
A culture of disbelief has been described.
The damning ET judgment against PHE in Dr Oshin’s case is all the more significant when understood in this context.
The judgment gives interesting glimpses into what happens behind the scenes. For example, this is an exchange between the Duncan Selbie CEO of PHE and another senior manager:
PHE told the ET that it would conduct a review of its processes.
However, PHE has been reluctant to respond to questions about its race equality governance. It missed an FOI deadline and failed to respond to a reminder. Only after a complaint to the ICO, and an email to Duncan Selbie, was a response forthcoming.
The tone of PHE’s response is defensive.
“The Employment Tribunal did not make a finding of institutional racism, something that Judge Housego made clear personally at the remedies hearing in April 2017 at the Exeter Employment Tribunal, stating that he had deliberately stopped short of using this term.”
“We were identified as one of the UK’s Top 100 Employers in the Race for Opportunity /Business in the Community Race Equality Awards in 2017.Sixteen BAME staff participated in BITC mentoring circles. A copy of the presentation to the PHE Advisory Board in February 2018 is attached.”
PHE has provided a copy of a February 2018 presentation to its board on its achievements on Equality and Diversity.
This reveals that after the Oshin judgment in January 2017, PHE established a ‘Diversity and Inclusion and Staff Health and Wellbeing Unit’.
This presentation includes the reassuring observation:
“In 2013, white external applicants six times more likely to be appointed – now three times”
That’s alright then.
PHE indicated that in July 2017 it commissioned a review, to be undertaken by Prof Parish, one of its non-executive directors into the soundness and fairness of its procedures around various issues such as the application of disciplinary procedures against doctors and medical revalidation. Curiously, PHE describes this as an ‘independent’ review.
This review has not yet been undertaken, reportedly due to illness, but these are the terms of reference:
During the course of events leading up to his constructive dismissal, Dr Oshin was concerned about PHE’s plans to close its office in Cornwall and the effect on service provision. He flagged his concerns to an MP.
PHE attempted to block this disclosure:
However, the ET determined that this was a properly made public interest disclosure:
“The meeting with the MP would fall clearly within the public interest provisions of the Employment Act 1996. The disclosure was made in good faith, without prospect of gain, to an MP, with the aim of getting the MP to exert pressure on the CEO of the Respondent, the matter having previously been raised by the Claimant at a senior level in the organisation.”
Importantly, the ET upheld Dr Oshin’s contractual right as an NHS doctor to speak out:
The above clause, which in theory allows NHS consultants to publish and speak freely, is contained in the 2003 consultant contract.
PHE was asked for its risk assessment regarding the closure of its Cornwall office. It has provided a personnel consultation document. This indicated that part of the rationale for closing the office was to save money.
It is relevant to note that BME whistleblowers are more likely to be both ignored and victimised.
Source: Freedom To Speak Up Review February 2015
So if PHE is amongst the ‘best’, what does that say about the rest?
The NHS is in the throes of a severe workforce crisis which threatens patient safety. It cannot afford to continue taking its BME work force for granted.