By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist 17 February 2020
Linda Fairhall’s stark NHS whistleblowing case brings Robert Francis’s distasteful journey with the NHS and the MidStaffordshire disaster full circle.
Francis should have fought harder for whistleblowers but abandoned his original recommendations from the Mid Staffs public inquiry.
After Francis received a knighthood and seat on the CQC board in 2014, he chaired the Freedom To Speak Up Review into NHS whistleblowing for Jeremy Hunt.
Hunt of course made great political capital out of Mid Staffs but did little to genuinely make the NHS safer.
Francis pulled punches on the Freedom To Speak Up review, eschewing substantive reform of unfit UK whistleblowing law and shedding his original recommendation to deter whistleblower reprisal with criminal sanctions.
An unpleasant touch in his review report was a faintly derisory tone towards contributors who urged criminal sanctions, as if to imply that he himself had never heard of such an extreme idea:
Francis came up with the ridiculous fudge of the Freedom To Speak Up model of internal trust Guardians and a toothless National Guardian whom he recommended should not investigate whistleblowers’ concerns. He left investigation of concerns under employers’ control, thus abandoning whistleblowers.
The model of internal trust Guardians was borrowed from Whitehall’s nominated whistleblowing Officers which had existed for some years with no evaluation.
Linda Fairhall and University Hospital of North Tees & Hartlepool NHS Foundation Trust
Linda Fairhall was a senior nurse with nearly 40 years “unblemished” NHS record.
This is her in August 2016, on the far left, supporting her staff:
Classically, things only went wrong for her after she raised concerns about safe staffing and patient safety. at University Hospital of North Tees & Hartlepool NHS Foundation Trust.
The saga is detailed in the following Employment Tribunal judgment of 7 January 2020:
As well as the risk and harm caused to patients by lack of safe staffing, Linda Fairhall was very concerned about the severe strain on her staff and the harm to their well being.
Vague counter-allegations were made against her of bullying and harassment which were demonstrated to be insubstantial.
|The ET was highly critical of the incompetent, trumped up nature of the trust’s allegations, disciplinary action and dismissal:
“119. The tribunal found the respondent’s investigation into the claimant’s alleged misconduct to be inadequate and unreasonable in all the circumstances of the case. No explanation was given for the unreasonable delay in interviewing the relevant witnesses, particularly those who are said to have expressed concerns about the claimant’’ behaviour. No explanation was given as to what was to be the remit of the investigation or of any instructions given to the investigating officer. No explanation was given as to why the investigating officer was not called to give evidence to the tribunal. The allegations of misconduct for which the respondent says it dismissed the claimant were never specifically put to the claimant, so that she was never given a fair opportunity to prepare her case or to respond to them. The respondent’s witnesses referred to little more than “themes” or “perceptions” by the staff, none of which contained a level of detail which would have enabled the claimant to respond. Many of the questions put to the staff contained what are commonly called “closed questions” which the tribunal found to be indicative of a requirement from the questioner that the interviewee would actively seek to identify any matters which may be detrimental to the claimant. When the investigation was completed and the report produced, it should have been sent to the claimant in accordance with the respondent’s policy. No explanation was given by the respondent as to why the report was not sent to the claimant until October. The tribunal found that no reasonable employer in all the circumstances of this case, would have conducted the investigation in this manner.
120. The tribunal found that the disciplinary hearing itself was unfair and unreasonable from the outset, in that it did not set out with any precision the allegations of misconduct which the claimant was expected to answer. The tribunal found it unreasonable for the respondent to say in these proceedings that the claimant could and should have been able to discover the nature of the allegations by reading the investigation report. Bearing in mind the size of the respondent’s administrative resources and in particular its dedicated HR resources, that was an unreasonable approach to adopt. The tribunal notes that, under cross examination, Ms Grieves conceded that there were a number of flaws and defects in the disciplinary hearing. Despite those concessions, Ms Grieves insisted that the disciplinary hearing had been fair and that those flaws did not adversely affect the fairness of the outcome. The tribunal found Ms Grieves to be an unpersuasive and unreliable witness. In assessing credibility, the tribunal took particular note of her sudden introduction of a finding by the disciplinary panel that the claimant had been dishonest in her handling of the charitable monies. Equally alarming was Ms Grieves evidence that it was this finding of dishonesty which led to the claimant being dismissed, as she would not have been dismissed solely in respect of the allegation relating to her professional behaviour. It was put to Ms Grieves in cross examination by Mr Rudd that this revelation was no more than an attempt by her to “beef-up” the respondent’s case, which she could now see to have been seriously eroded by the answers given in cross examination by earlier witnesses. Ms Grieves denied that she was so doing. In the absence of any meaningful explanation as to why there had never been any allegation of dishonesty made against the claimant and why that finding was not recorded anywhere in the dismissal letter, the tribunal found that Ms Grieves was indeed trying to “beef-up” the respondent’s case. The tribunal found that Ms Grieves was being less than candid with the tribunal.
121. The tribunal found that the decision of the disciplinary panel to dismiss the claimant for gross misconduct was not supported by the evidence before the panel. The reasoning behind the decision was systematically dismantled by Mr Rudd in his cross examination of Ms Grieves.
122. The tribunal found that the appeal process conducted by Lynne Taylor was similarly flawed. The tribunal found that no reasonable appeal officer could possibly have fairly and reasonably addressed all of the claimant’s grounds of appeal in the time taken to hear the appeal and particularly for the panel to undertake its deliberations. The defects in the investigation report were put to Ms Taylor who, albeit reluctantly, accepted that a number of the claimant’s grounds of appeal should have been upheld. Ms Taylor said in her evidence that she could recall Ms Grieves saying at the appeal hearing that the dismissing panel had taken into account the claimant’s “dishonesty” in coming to its decision to dismiss the claimant. Again, no mention is made of that in the minutes of the appeal hearing or in the letter dismissing the appeal. The tribunal found that the appeal process and the appeal hearing had not been conducted in a fair or reasonable manner.
123. In terms of the unfair dismissal claim, the tribunal was not satisfied that the respondent had established that its reason or its principal reason for dismissing the claimant was a reason related to her conduct. Those responsible for the claimant’s dismissal and the dismissal of her appeal did not “genuinely believe” that the claimant had committed any acts of misconduct which are now alleged. There could be no such genuine belief because there were no reasonable grounds for that belief. There could be no reasonable grounds because there had not been a reasonable investigation. The respondent’s decision to dismiss the claimant fell outside the range of reasonable responses open to an employer in all the circumstances of this case. This was an employee of thirty-eight years unblemished service who was suspended from her role in circumstances where that suspension was unjustified and unreasonable. The investigation which followed that suspension was inadequate and unreasonable. The investigation did not produce any qualitative evidence which could have led a reasonable employer to decide to dismiss the claimant in those circumstances, for reasons related to her conduct. The procedure followed by the respondent was unreasonable and unfair. For those reasons the claimant’s complaint of unfair dismissal is well-founded and succeeds.
124 Turning now to the claimant’s complaint of wrongful dismissal, the tribunal is not satisfied that the respondent has established that the claimant’s conduct amounted to gross misconduct which could possibly have justified summary dismissal. Nothing which the claimant was accused of doing could be described as seriously inconsistent or incompatible with her duty as a clinical care coordinator. On an evaluation of the primary facts, the tribunal was satisfied that nothing done by the claimant could be described as conduct of such a grave and weighty character as to amount to a breach of the confidential relationship between the claimant and the respondent such as would render the claimant unfit for continuance in the respondent’s employment and give the respondent the right to discharge her immediately. With regard to the allegations of professional conduct, inappropriate behaviour, bullying and harassment, there were simply no facts which could lead the respondent to come to that conclusion. With regard to the allegations relating to the charitable monies, the tribunal found that the claimant’s failure to deposit those monies with the respondent’s cashier was no more than an oversight and which did not involve any element of “dishonesty”, applying the objective standards of ordinary reasonable and honest people armed with all the relevant information. For those reasons the claimant’s complaint of wrongful dismissal is well-founded and succeeds.”
“126. In the claimant’s case before this tribunal, Ms Fairhall had made a number of protected disclosures to a number of different people within the respondent’s hierarchy. That hierarchy included Julie Lane (Director of Nursing), Julie Parks (Associate Director of Community Services) and Steve Pett (General Manager). It was those three senior managers who met immediately after the claimant expressed her intention to invoke the formal whistleblowing policy, and decided that the claimant should be suspended. From the date of that decision, the respondent’s substantial HR resources were engaged in the administration of the suspension, investigation, disciplinary process and appeal process. Those same HR resources were also engaged in the administration of the claimant’s grievance, the grievance hearing and the grievance appeal. The claimant made it known to Mary Grieves and Lynn Taylor that she believed the reason why she was suspended, investigated, disciplined and dismissed, was because she had made those protected disclosures. Ms Grieves and Ms Taylor both confirmed under cross examination that they were aware that the claimant had raised a grievance, but both denied that they were aware of the exact contents of the grievance. Both denied that their respective decisions to dismiss the claimant and dismiss her appeal against dismissal, were in any way influenced by the fact that she had made those protected disclosures. The tribunal did not accept their evidence in that regard. The original decision to suspend the claimant and to instigate a formal investigation was taken by the most senior member of the hierarchy, Julie Lane. The tribunal found it likely that thereafter, the task of investigating the claimant, instigating disciplinary proceedings and ultimately dismissing her, were influenced by that hierarchy to such an extent that it was appropriate to attribute their motivation to those carrying out the process which led to the dismissal. The respondent has failed to produce any evidence to explain the claimant`s treatment and provided unsatisfactory explanations for other matters.”
“128. In coming to that conclusion, the tribunal particularly takes into account the close proximity in time between the last of the claimant’s disclosures and the declared intention to formerly engage the respondent’s whistleblowing policy, and the decision to suspend the claimant. The tribunal also takes into account the unreasonable nature of the investigation, the delay in undertaking the investigation and the length of the suspension. The tribunal particularly takes into account lack of credible evidence from the respondent’s witnesses who gave evidence to the employment tribunal. The tribunal found that Ms Grieves in particular was disingenuous in attempting to “beef-up” the respondent’s case by stating that the dismissing panel had in fact found the claimant to have been dishonest with regard to the charitable monies and that it was this “dishonesty” which led to her dismissal. Lynn Taylor’s evidence was little better, when she stated under cross examination that she did recall Ms Grieves mentioning at the appeal hearing that they considered the claimant to have been dishonest, yet there was no mention of such dishonesty anywhere in the notes of the hearing, the outcome letter, anywhere in Ms Taylor’s witness statement or indeed in any part of the respondent’s pleaded case.”
A patient died despite Linda Fairhall’s meticulously documented warnings to senior trust managers, and after a poor system response to her concerns.
This death added urgency to the institutional imperative to cover up and manage her out of the organisation.
“21. (PID9). On 8th October 2016 at a meeting with Steve Pett, Emma Campbell (Head of Nursing) and Mel Cambidge (Senior Clinical Matron) the claimant informed those persons that, as a result of the decrease in staff levels, the nurses and staff were now unable to function in their roles. This meeting had been triggered by the death of a patient on 4th October 2016, which the claimant felt may have been preventable, had her earlier concerns been properly addressed.”
Linda Fairhall was suspended three weeks after the above meeting about the death and the factors related to the death.
Safe staffing is of course Robert Francis’ pivotal recommendation from the MidStaffs disaster, which the Tory government tossed away, after first making cynical political capital from the disaster.
As the cover up of Linda Fairhall’s concerns got into full swing, she was suspended for almost two years and then sacked on 16 April 2018, over three years after the Freedom To Speak Review reported:
“…the claimant had originally been suspended on 31st October 2016 and that her suspension thereafter continued for some 18 months until she was dismissed on 16th April 2018.”
The Employment Tribunal determined that her suspension and dismissal were unjustified, and represented victimisation for whistleblowing.
So after ten years, an independent inquiry, a public inquiry, a whistleblowing review and industrial quantities of hot air and platitudes by Francis, we still have conscientious, capable, experienced NHS staff being wastefully sacked for no reason other than doing their job, and raising concerns about basic staffing shortage.
The small print of Linda Fairhall’s case reveals even more embarrassment for Robert Francis.
The contents of a Care Quality Commission inspection evidence appendix from a November/ December 2017 inspectionon University Hospital of North Tees & Hartlepool NHS Foundation Trust indicated that around the time that Linda Fairhall was sacked, the trust Freedom To Speak Up Guardian was none other than the Trust Director of Human Resources.
The trust annual report for 2017/18 confirms that he was the Freedom to Speak Up Guardian at that point:
Although he is not explicitly named in the ET judgment, it is hard to imagine that a trust Director of HR would be unaware of a serious whistleblower case, or the sacking of a whistleblower.
The CQC were uncomplimentary about the trust’s Freedom To Speak Up arrangements:
“There was a ‘raising concerns’ (whistleblowing) policy, although we found some barriers in the ‘Freedom to Speak Up’ processes. The Freedom to Speak Up Guardian was the interim director of workforce. They had not had any formal training to take on the role and did not have any dedicated time to carry out Guardian responsibilities. The Guardian did not network with other regional or national Guardians. There were no records to suggest people had been approaching the Guardian with concerns.”
Shamefully, the CQC failed to detect or report that the trust had incarcerated Linda Fairhall, a whistleblower, on long term suspension at the time of their 2017 inspection.
CQC just rated the trust ‘Good’ overall, and ‘Good’ on the Well Led domain. CQC gave the trust a clear pass on safe staffing:
“Staffing numbers allowed the trust to provide safe care to patients. The trust had robust systems in place to manage staffing shortfall as well as escalation processes to maintain safe patient care.”
According to the trust website, the interim Director of Workforce in November/December 2017, Alan Sheppard, remains at the trust and is now the substantive Director of Workforce:
Another classic outcome to a whistleblower case.
Gloss slapped over the concerns, a P45 for some, and job security for others.
The Health Service Journal has today reported that, despicably, North Tees intends to appeal the ET decision: “NTH told HSJ it plans to appeal the tribunal’s decision.”
UPDATE 18 FEBRUARY 2020
A Nursing Times interview reports tragically that Linda’s partner died suddenly of a heart attack eight months into her unjustified suspension. Her son was also unwell and she herself was recovering from breast cancer at the time.
Of note, this interview notes that a Freedom To Speak Up Guardian was supportive.
There may be some anomaly over terminology. No doubt all will become clearer in time.
A North Tees FOI disclosure to me of 15 February 2019 Ref FOI1819(510) revealed that the trust had one main Freedom To Speak Up Guardian and several supporting Freedom to Speak Up ‘champions’ during the relevant period. At the time of the unfair dismissal, and of CQC’s critical findings about the trust’s Freedom to Speak Up arrangements, the Director of HR was the Freedom to Speak Up Guardian:
I will not share the trust’s whole FOI disclosure because some of it may identify other whistleblowers, but reportedly only two cases were raised with the trust Freedom To Speak Up Guardian in 2016/17, one of which corresponded with Linda Fairhall’s case. The trust appeared dismissive of an experienced nurse’s carefully documented concerns and of a patient’s death:
Linda Fairhall’s outrageously prolonged suspension for no good reason shows how successive governments have continued to keep the politically useful tool of arbitrary discipline in the NHS, because it assists with control and grip.
It is almost twenty years since the National Audit Office recommended measures for tracking and reducing inappropriate use of unjustified and wasteful suspension in the NHS, but these remain on a dusty shelf.
Weak and easily abused NHS disciplinary processes make it easier for whistleblowers to be silenced.
Combined in some trusts with ineffective or even abusive Freedom To Speak Up Guardians, these factors present continuing risk for whistleblowers.