Summary: North Tees and Hartlepool NHS Foundation Trust has once more been comprehensively rebuked by the Employment Tribunal for serious whistleblower detriment. It is an illustrative case of how organisations close ranks and collude. The trust has been found to have racially discriminated against surgeon Mr Manuf Kassem, and to have punished him for whistleblowing. The ET has determined that the trust medical director threatened him with disciplinary action, that a clinical director revealed his identity as a whistleblower – including to other doctors about whom he had whistleblown, and that doctors about whom he had raised concerns filed retaliatory Datix incident reports. The ET found that Mr Kassem was subjected to a retaliatory disciplinary investigation and punitively removed from emergency out of hours duties for whistleblowing. Care Quality Commission Regulation 5 Fit and Proper Person issues arise about the board of this trust, this being the second recent and serious whistleblower case. The earlier case of North Tees whistleblower Linda Fairhall drags on because the trust is vindictively pursuing an appeal after she won her ET claim and despite the fact that her partner died of a heart attack whilst she was suspended.
It is also relevant to note that Mr Kassem’s patient safety concerns were reviewed by North Tee’s deputy medical director, who was also called in by University Hospitals of Morecambe Bay NHS Foundation Trust to review whistleblowers’ concerns about orthopaedic services. The orthopaedic safety matters at UHMBT drag on and local members of parliament are now involved.
North Tees and Hartlepool NHS Foundation Trust has already been in the spotlight because of its proven victimisation of NHS whistleblower Linda Fairhall, a senior nurse who raised safe staffing concerns. Her partner died of a heart attack whilst she was suspended from her duties in an act of detriment. Linda Fairhall won her Employment Claim but the trust has been vindictive in defeat and seeks to inflict more suffering by appealing. The case was also particularly notable because the trust head of Human Resources was at one point the lead Freedom To Speak Up Guardian. See:
Mr Manuf Kassem’s whistleblowing case
Another whistleblower at North Tees Mr Manuf Kassem Associate Specialist in Urology has now had an Employment Tribunal judgment in his favour, remarkably after representing himself. It is rare for whistleblowers to win ET claims, rarer still for them to establish a specific finding of whistleblower detriment and very rare for them to succeed as litigants in person.
I am unable to do the case justice due to very limited time at present, but am reporting briefly on the ET judgment to raise awareness of North Tees’ recidivism:
In essence, Mr Kassem has established that North Tees racially discriminated against him and also retaliated against him because he made protected disclosures in the public interest, about patient safety.
This is the ET’s summary of Mr Kassem’s protected disclosures:
“The second investigation meeting into the claimant’s grievance took place on 4 August 2017 (260). While this is the second meeting that had been arranged to discuss the grievance it has additional significance in that at this meeting the claimant presented to Mr Tulloch details of 25 patients whom he alleged had “suffered complications, negligence, delayed treatment and avoidable deaths.” In this respect the Tribunal records that the respondent accepted that the claimant raising these concerns amounted to a protected disclosure. Additionally, at this meeting, unlike the first investigation meeting, the claimant made express reference to issues of ethnicity and race. Having named five surgeons whom he described as being “untouchable” the claimant is recorded as having said, “it was dependent upon nationality if you are white or from India you would receive different treatment”. In this regard, the claimant referred to a Turkish surgeon who had received treatment similar to him, a doctor from Pakistan “who had put a complaint in about how AA had treated her” and a colleague from Nigeria who was “shouted at by one of AA close friends” (265).”
Very significantly, the ET found that those who retaliated against him included Dr Dwarakanath the trust’s medical director. Dr Dwarakanath set up a panel to look at Mr Kassem’s patient safety concerns. The ET noted that the medical director had given inconsistent accounts about this process and its objectivity as regards the involvement of Mr Kassem’s clinical director, Mr Agarwal:
“Returning to the chronological order of events, as mentioned above at the second grievance investigation meeting with Mr Tulloch the claimant had raised concerns in respect of 25 patients. Dr Dwarakanath was made aware of this by Mr Sheppard and Ms Johnson in early February whereupon he established a panel to consider the concerns the claimant had raised in relation to these patients. The individuals whom Dr Dwarakanath invited to join him on the panel were Mr C, consultant urologist and medical director with a neighbouring NHS Foundation Trust and Mrs C (no relation to Mr C) who was employed by the respondent and had expertise in governance and safety. The evidence of Dr Dwarakanath was that Mr Agarwal and a colleague provided access to the patients’ records and other relevant information but neither “played any role in the review” but that is contrary to the letter he wrote to consultant surgeons and urologists dated 25 June 2018 in which he stated that the cases “were critically reviewed by [Mr C], myself, Mr Agarwal and [Mrs C]” (381); that clearly indicating Mr Agarwal’s position within the review panel.”
The ET considered that a letter from the medical director to Mr Kassem amounted to a threat of disciplinary action and was a detriment for whistleblowing:
“10.111 Ms Johnson wrote to Dr Dwarakanath on 27 November to draw these matters to his attention (477). He then wrote to the claimant on 13 December 2018 (500) informing him that so as to ensure that any reconvened meeting was productive and conclusive he had instructed Prof M to facilitate the job plan discussion along with a member of HR who would provide expert advice. Dr Dwarakanath concluded his letter, “May I remind you also that any further incidents of this nature may result in formal action being undertaken in accordance with Trust HR policy.”
“f. The letter Dr Dwarakanath wrote to the claimant on 13 December 2018 is considered at paragraph 10.111 above. The Tribunal is satisfied that such a strongly worded letter written by someone of such seniority and authority in the respondent’s organisation did constitute a threat of disciplinary action and that was a detriment. The letter therefore amounted to a detriment to which the claimant was subjected by the respondent (in the shape of Dr Dwarakanath). The Tribunal is satisfied that Dr Dwarakanath’s motivation in writing this letter was bound up with the claimant having raised his concerns in respect of the 25 patients as a result of which Mr Shanmugam and Mr Bhaskar were no longer willing to work with him on the emergency on-call rota and Ms Dean, Mr Agarwal and Dr Dwarakanath then agreed that the claimant should be removed from that rota, all of which is set out in more detail in the Tribunal’s findings of fact above. For those reasons, and having considered the mental processes of Dr Dwarakanath, the Tribunal is not satisfied that the respondent has discharged the burden of proof upon it to show that the letter was not written on the ground that the claimant had made a protected disclosure.”
Moreover, the ET found that Dr Dwarakanath inappropriately placed himself on a disciplinary panel against Mr Kassem despite prior involvement in the case, and that this constituted a detriment for whistleblowing:
“In his letter of 7 March 2019 Dr Dwarakanath informed the claimant that he would be one of the three members of the disciplinary hearing panel; indeed he was to be its chair. Given Dr Dwarakanath’s previous involvement the Tribunal is satisfied that that was to the claimant’s detriment, which is reinforced by Ms MT having explained in her letter to the claimant of 15 May 2019 that due to that involvement she considered it appropriate that an alternative chair should be appointed. Thus, there is again the protected disclosure and detriment to which the respondent submitted the claimant. Once more on the evidence available to it and again having focused upon the mental processes of Dr Dwarakanath, the Tribunal is not satisfied that the respondent has discharged the burden of proof to show that Dr Dwarakanath appointing himself as chair of the disciplinary panel was not on the ground that the claimant had made a protected disclosure.”
The ET judged that Mr Kassem was removed from some duties, emergency on call, as an act of whistleblower detriment:
“As also explained above, the Tribunal is satisfied that the outcome of the job plan review meeting on 2 January 2019 that the claimant would no longer undertake out of hours or emergency on-call duties as part of the middle grade rota was undoubtedly a detriment to which the claimant was subject by the respondent. Having focused primarily on the minds of Mr Agarwal and Ms Dean who had conduct of that meeting but more generally upon the mental processes of all those referred to above who had sought to have the claimant removed from the on-call rota, on the evidence available to it as summarised above, the Tribunal is satisfied that the respondent has failed to discharge the burden of proof to show that the claimant no longer undertaking such duties was not on the ground that he had made a protected disclosure.”
The ET concluded that the three key individuals behind this act of detriment were Dr Dwarakanath medical director, Mr Agarwal clinical director and Ms Dean Care Group Manager:
“The Tribunal has explained above its findings in relation to the email exchanges on 4 September 2018 and being satisfied that the purpose of that email exchange was to stop the claimant’s oncall emergency duties. The claimant had made a protected disclosure and, having focused on the minds of Ms Dean, Mr Agarwal and Dr Dwarakanath, the Tribunal is satisfied that he was subjected to detriment by the respondent, in the shape of those three individuals. As such, in accordance with section 48(2) of the 1996 Act the burden of proof shifts to the respondent to prove, on balance of probabilities, that the claimant was not subjected to detriment on the ground that he made the protected disclosure. Again having focused on the minds of those three individuals, on the evidence available to the Tribunal (again as set out at some length above in relation to the email exchanges) it is not satisfied that the respondent has discharged that burden of proof.”
The ET indicated that it was not satisfied with the clinical director’s evidence:
“The Tribunal did not find Mr Agarwal’s evidence on this issue to be satisfactory. At paragraphs 43 and 44 of his witness statement he had conflated what were clearly two conversations between him and Mr Q some seven months apart. He did not make it clear that in the first of their conversations Mr Q had denied that the claimant had telephoned him (that only coming to light in the course of the investigation carried out by Mr Tulloch into the claimant’s grievance in July and August 2017) or make it clear that it was only in their second conversation that Mr Q had told Mr Agarwal that the claimant had in fact telephoned him. Further, Mr Agarwal’s evidence was that at the consultant’s meeting on 9 December he did not mention names or criticise anyone. That, however, is contrary to, first, Mr CH having told the claimant that he had been identified at the meeting and, secondly, to the discussion between the claimant and Mr Agarwal in the corridor having been witnessed by others. Notwithstanding this change in Mr Q’s account of the incident (and therefore Mr Agarwal’s understanding of what had actually occurred between Mr Q and the claimant) the minutes of the meeting on 9 December were never revisited or clarified.”
The ET also concluded that the clinical director had revealed Mr Kassem’s identity as a whistleblower to other doctors at a meeting where Mr Kassem’s patient safety concerns were discussed:
“The oral evidence of the respondent’s witnesses in relation to this meeting was to suggest that the claimant was not named by Mr Agarwal as being the person who had raised the concerns but that is contradictory to the evidence in Mr Bhaskar’s witness statement that at this meeting in April he was given details of two cases pertaining to his treatment, “In one of the cases discussed it states that Mr Kassem had been told by another consultant that I had performed an experimental operation on a patient ….. This incident occurred in 2012 so there had been plenty of time for Dr Kassem to have approached me to express his concerns.” That witness statement was presumably produced in a considered way and with the benefit of legal advice and the opportunity for discussions with colleagues, for example Mr Agarwal. That being so, the Tribunal accepts that evidence that at the meeting in April the identity of the claimant as the individual who had raised the patient safety concerns was revealed by Mr Agarwal.”
Related to the punitive, retaliatory removal of Mr Kassem from emergency out of hours work, the ET determined that two doctors, who had been criticised in Mr Kassem’s protected disclosures, submitted unfavourable Datix incident reports against Mr Kassem as an act of whistleblower reprisal:
“The Tribunal has found above that the claimant made a protected disclosure when, at the second grievance meeting on 4 August 2017, he provided to Mr Tulloch a list of 25 patients whom he considered had suffered morbidity, harm and unnecessary death; this being carried forward into the consultants’ meeting in April 2018. Additionally, having focused on the minds of Mr Shanmugam and Mr Bhaskar, the Tribunal has made a specific finding at paragraph 10.88 above that they respectively submitted their Datixes with the express purpose of removing the claimant from the emergency on-call rota; further, that their reason for that was that he had criticised their clinical practice when he raised his concerns in respect of the 25 patients.
Thus, the claimant made a protected disclosure and was subjected to detriment by the respondent; in the shape of Mr Shanmugam and Mr Bhaskar. As such, in accordance with section 48(2) of the 1996 Act the burden of proof shifts to the respondent to prove, on balance of probabilities, that the claimant Case Number: 2502292/2019 79 was not subjected to detriment on the ground that he made the protected disclosure. On the evidence available to the Tribunal as considered above it is not satisfied that the respondent has discharged that burden of proof. On the contrary, the Tribunal is satisfied that the motivation of Mr Shanmugam and Mr Bhaskar in submitting those Datixes (being the detriment) was that the claimant had made that protected disclosure.”
Mr Kassem was accused of working too hard. Whilst this may seem bizarre to the uninitiated, conscientious whistleblowers may face all manner of desperate, ridiculous allegations by those scraping the bottom of the barrel to fabricate disciplinary cases, including allegations of working long hours or working late.
The ET reported as follows on this issue, concluding that long hours were a pastoral and not a disciplinary matter:
“10.116 As to the allegation of unsafe working practices, Ms Lynch’s evidence in her witness statement was that concerns had been raised in relation to the number of additional hours that were being undertaken by the claimant but the Tribunal is unable to identify the source of those concerns. Suffice it to say that it appears that by mid September 2018 any issue in this regard had been resolved in discussions between Ms CB, an Administration Manager, and the claimant (950). In particular, it is recorded that the RMO was going live on Healthroster and Ms CB informed the Investigation Team on 12 October that if they ever needed the claimant “to cover we check what he has been doing previously and the day after the shift” (775) i.e the risk of the claimant working excessive hours was being monitored and could be addressed as necessary. This is significant as in its report the Investigation Team refers to the week commencing 10 September 2018 (i.e. before the resolution of this issue). It would also appear from CB’s email to Ms Dean of 29 August 2019 (1054A) (which explains the Healthroster system) that if excessive hours were to be worked, Directorate staff would be alerted to reject the doctor from the shift. It also seems from that email that other doctors were working excessive hours but there is nothing before this Tribunal that suggests they were taken through a disciplinary process in those respects. In any event, as the Investigation Team also records, the Directorate bore some responsibility for ensuring that the claimant did not work excessively. Fundamentally, however, if this is an issue, it would appear to the Tribunal as one for guidance in a pastoral sense rather than being addressed through a disciplinary procedure.”
At one point, Mr Kassem was accused of possible fraud, but this was dismissed and it was concluded that if anything, Mr Kassem had underclaimed for work done and deserved to be paid more:
“10.120 The final allegation against the claimant is that he had engaged in potentially fraudulent activity. The basis of this allegation was identified by Ms Dean in her witness statement as being that during a review of additional timesheets submitted by the claimant for the period 4 August to 16 September 2018 she had identified that there was an overlap and double-counting for time when he should have been starting his normal scheduled work but was still claiming for his RMO work finishing after that time. More particularly, on 10 and 15 August and 14 September 2018 the claimant had claimed to have finished his 12-hour RMO shifts in Hartlepool at 9.00am but, on each of those days, he should have commenced his scheduled programmed work at 8.30am; that being, on 15 August, a manometry clinic at 8.30am at North Tees. As to 10 August and 14 September, the claimant explained that he had adjusted his working time to accommodate a colleague. The claimant had started his shift at 8.00pm the night before and a colleague attended at 8.00am and they both agreed that so as to avoid confusion they would each claim 12 hours as shown on the rota (i.e. in the claimant’s case from 9.00pm to 9.00am), which the claimant suggested is a frequent occurrence between doctors. As to 15 August, the claimant explained that although the manometry clinic started at 9.00am, preparatory work could take 30 to 40 minutes and it had therefore been agreed with the colorectal manager that the claimant’s start and finish times could be adjusted so as to be from 9.30am to 1.30pm thus maintaining the same number of hours per session. In these circumstances the claimant denies any overlap in his working hours. The Tribunal accepts the claimant’s explanation that the manometry clinic does not start until 9.00am, and not 8.30am as alleged, given that that is supported by the evidence of Mr Tabaqchali, and, in any event, the clinician is not required to be in attendance until 9.30am and the claimant finished at 1.30pm. In this regard, the evidence of Mr Tabaqchali is clear, “the manometry clinic starts at 9.30am, and not 9.00am as stated in his job plan” and given the regular meetings that Mr Tabaqchali (as lead for the colorectal service until 2016) had had with the Directorate management team where all operational, performance and staffing issues were standing items on the agenda it was “difficult to imagine that the directorate had no knowledge of how the lab or the service works over such a long period of time.” Although it is a different point, Mr Tabaqchali concluded his evidence in this respect that he was aware that the claimant “did numerous additional sessions without claiming payments. I therefore think it is a great pity that the directorate has taken this approach rather than thanking him for his hard work and dedication. I would suggest that the directorate overall owe him more pay, not less pay.”
The ET concluded that those involved in a process of disciplinary investigation against Mr Kassem had acted out of retaliation for his whistleblowing:
“As stated in relation to paragraph 4b. of the claimant’s victimisation complaint the Tribunal has found that the investigation did amount to a detriment. Given that the claimant had made a protected disclosure and the Tribunal being satisfied that the respondent subjected him to that detriment, the burden of proof again shifts to the respondent to prove that the claimant was not subjected to the detriment on the ground that he made the protected disclosure. Having considered the mental processes of those involved in instituting and progressing the disciplinary investigation, for the reasons set out in its findings of fact above, the Tribunal is not satisfied that the respondent has discharged that burden of proof to the satisfaction of the Tribunal.”
All the above is a depressing litany, so very familiar to many whistleblowers.
Issues of CQC Regulation 5 Fit and Proper Persons arise regarding the board of North Tees and Hartlepool NHS Foundation Trust, not just because of the details of Mr Kassem’s case but because it follows Linda Fairhall’s case.
And there is one notable detail.
Mr Kassem’s patient safety whistleblowing concerns were reviewed by North Tees’ deputy medical director, Chris Tulloch. The ET noted the following:
“The 25 patients referred to above were reviewed by Mr Tulloch. He noted that all but one of the cases had been through at least one of the relevant processes operated by the respondent: the M&M meeting, the Independent Review Panel (“IRP”) or the Safety Panel. The one case that had not been through a review route was relatively recent and there were plans in place to progress it. Having reviewed the documentation, Mr Tulloch was satisfied that the appropriate processes had been adopted to ensure that objective scrutiny had been applied and he had not identified any untoward practice occurring within the Directorate (285/6).”
The UHMBT orthopaedic safety matter continues unresolved and local members of parliament are now involved.
In the aftermath of Linda Fairhall’s case, Henrietta Hughes the National Guardian was quoted as saying “Workers who speak up should be thanked for doing so and the organisation should demonstrate they are taking action to address the issues raised.”
Yet she has announced no formal case review of the whistleblowing governance at North Tees, and now there is a second serious failure. Who knows if even this will persuade her to take any real action to support future whistleblowers at the trust. Her Office has ingeniously cited both uncompleted and completed employment tribunal proceedings as exclusion criteria for case review.
In fairness, one must marvel at the audacity of the self-serving puffery that is the government’s Freedom To Speak Up project.
These outrages and injustices will continue for as long as UK politics remain broken with cronyism and impunity, and our weak whistleblowing law is left unreformed. However long as it takes, whistleblowing law reform is badly needed:
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