By Dr Minh Alexander NHS whistleblower and retired consultant psychiatrist, 23 February 2021
Summary: Barts Health NHS Trust has been found guilty of victimising Jeyran Panahian-Jand a bona fide
whistleblower who raised concerns that the trust was discriminating against BME staff in unfavourable allocation of work. The Times covered this story today, but missed out the most serious aspect: the trust’s cover up of investigation findings that were in the whistleblower’s favour.
Most seriously, the ET concluded that a trust manager who is an associate trust director was part of a trust cover up of investigation findings that there was race discrimination at the trust: “…we are very concerned
here that the Trust went to the expense of an independent investigation but has then misrepresented and diminished the findings of that investigation to the complainant and the ward manager”.
The trust has a predominantly white trust board (fourteen of eighteen directors) despite its catchment being one of the most diverse. The trust’s own documents show that based on 2011 data, only 41% of the trust’s catchment area is composed of white people.
Barts also relies on an outsourced Freedom To Speak Up Guardian, supplied by a private company, which carries a risk of reduced trust board accountability.
The details of the case and background issues about governance problems at Barts follow.
Ms Jeyran Panahian-Jand v Barts Health NHS Trust whistleblowing case
An Employment Tribunal has found that Jeyran Panahian-Jand a paediatric bank nurse at Barts was victimised after she made public interest disclosures on 14 May 2019 about staff racial segregation on a ward where she had worked, and raised a concern that white staff were being treated preferentially in terms of work allocation.
This is the full Employment Tribunal judgment:
Just two weeks after whistleblowing, on 30 May 2019 she was banned from working on Acorn ward, Whipps Cross Hospital on insubstantial allegations of misconduct. She was accused of continuing to talk about her concerns after the ward manager claimed they were upsetting other staff and that she should stop airing them.
Ms Panahian-Jand was not allowed back to work on Acorn ward even after an investigation found there was no case against her. The trust failed to give her the findings of the investigation and astonishingly, she had to make a Subject Access Request to obtain the investigation report.
The trust dragged out her restriction wholly unreasonably, and the ET had to make a recommendation at the time of issuing its judgment on10 February 2021 that the trust should lift the ban against Ms Panahian-Jand working on Acorn ward within 4 weeks:
“Pursuant to section 124 of the Equality Act 2010, the Tribunal recommends that, no later than 4 weeks after this Judgment is sent to the parties, the restriction on the Claimant working at Acorn Ward and at Whipps Cross Hospital be removed.”
The Employment Tribunal concluded that the ward manager handled Ms Panahian-Jand’s whistleblowing concerns unfairly and had exaggerated claims that other staff were upset and did not want Ms Panahian-Jand to return to the ward.
The ET concluded that there was only a “loud minority” who were hostile to Ms Panahian-Jand and that this should not have stopped her return after the trust found no case to answer.
“We are not satisfied that there are any more than 4 members of staff on a ward of 60 who are concerned about the Claimant’s return. They have formed a loud minority.”
The ET determined that the ward manager did not respond to Ms Panahian-Jand’s whistleblowing appropriately because she was concerned Ms Panahian-Jand’s disclosures reflected badly on her management of the ward.
“We acknowledge that Mrs Roberts was an inexperienced manager. We consider her memory of the staff response on Acorn ward is likely exaggerated because she herself was uncomfortable and upset by the allegations as a reflection on her own management. She had wanted a happy ward.”
“Mrs Roberts was plainly herself uncomfortable at hearing the allegations. She had not wished to deal with them in an informal way, contrary to both the Whistle-blowing procedure and the Dignity at Work procedure, and indeed had straightaway rejected the correctness of the allegation about allocation. We have concluded that Mrs Roberts saw them as a reflection on her management.”
The trust commissioned an internal investigation into the counter-allegations against Ms Panahian-Jand which the ET noted came to an “unambiguous” conclusion that there was no case to answer. The investigator reportedly concluded that Ms Panahian-Jand had been wrongly suspended on flimsy evidence.
The trust however delayed providing Ms Panahian-Jand with this investigation report despite several requests. Extraordinarily, Barts only gave her the report after she made a Subject Access Request for it.
“Despite the Claimant’s many, polite requests, Mrs Kara’s report was not provided to her until she made a subject access request for it.”
Barts commissioned a quasi-independent investigation into her public interest disclosures:
“The Claimant’s race discrimination complaint was investigated by Mrs Cooper-James, Head of Investigations Services at London Audit, which is hosted by the Trust and therefore to some extent independent of it.”
There was bias by the trust from the outset. The ET concluded that internal correspondence between Mrs Stephenson Associate Director of Nursing for Children and Simon Steward (then Head of Human Resources, and now Head of People at Whipps Cross) showed that Mr Steward was hoping that Ms Panahian-Jand’s allegations of race discrimination would fall apart:
“79. Mrs Stephenson asked Mr Steward whether a 6-8 week estimate was reasonable for the investigation. He answered: If a full-time investigator is on this, I think it is feasible to do this. Many of the points are at this stage, statements without evidence and we would need to clarify who witnessed them. I have added in complaints from patients and staff because if there are none, the allegations, begin to fall apart. (our emphasis) .
80. The Claimant suggests this shows Mr Steward’s wish to see the allegations fall apart. Mr Steward said he was simply adding in that complaints should be looked at as they would provide independent evidence.
81. While it may have been relevant to look for complaints, that there had been none in the past, does not necessarily suggest that this complaint would be without merit. We therefore agree with the Claimant that this wording does suggest a hope that the complaint would fall apart.”
Despite the trust’s biased approach to the investigation of Ms Panahian-Jand’s whistleblowing disclosures, the relatively independent investigator concluded there was evidence to support Ms Panahian-Jand’s concerns:
“Mrs Cooper-James did find evidence to support the three race discrimination allegations first raised informally with Mrs Roberts on 11 May 2019 (allocation; groups on the ward, and bullying)”
Ms Goldsmith the then Head of Midwifery and now commissioning manager was one of the managers handling Ms Panahian-Jand’s case. According to the ET, she and Simon Steward minimised the investigation findings of race discrimination.
In their respective witness statements to the ET, they reportedly both used the phrase “‘no real evidence of discrimination’”. The ET described their claim as “patently incorrect” and castigated their distortion of the investigation findings:
“Why have both of these witnesses told the Tribunal there was no real evidence of discrimination, when on any fair reading of Mrs CooperJames’ report there was some? We are astonished by this. The Trust has sought to hide in its summary of the report, evidence of race discrimination found in the investigation. Mr Steward plainly did not want these findings aired and it supports us in our conclusion that he hoped the allegations would fail.”
Simon Steward drafted an outcome letter for Ms Goldsmith which falsely claimed that three of Ms Panahian-Jand’s central concerns had not been upheld:
“Mr Steward drafted a letter for Ms Goldsmith, which summarised Mrs CooperJames’ findings in a letter to the Claimant on 4 February 2020 (498). We have only looked at those 3 allegations that the Claimant raised initially, but the summary is not fair as Mr Steward accepted in his oral evidence:
84.1. Allegation 6: ‘If there is evidence of racial discrimination of staff members particularly those from non-white backgrounds’. Mr Steward’s summary says that ‘No evidence was found though divisions were expressed and diversity and inclusion training was recommended.’ Whereas Mrs Cooper-James reported ‘Evidence has been found of racial discrimination against staff. Non-White staff speak of a definite divide within the Ward according to race. It is indicative that all but one of the BME staff interviewed expressed that a divide was present. However, all white staff expressed there was no such divide.’
84.2. Allegation 23: ‘If patient allocation is equitable across the Team on duty regardless of race or colour.’ Mr Steward writes ‘In order that there is clarity around the allocation of patients, it is recommended that all staff are involved (where practicable) in the allocation of patients.’ Whereas Mrs Cooper-James plainly concludes there is evidence to substantiate the allegation because all but one of the BME staff stated they felt they were given the heavier workload (376-377).
84.3. Allegation 26: in relation to staff bullying. Mr Steward writes: ‘If staff believe there is bullying on Acorn Ward. Other members of staff should be invited to make complaints if they wish to do so.’ Whereas Mrs Cooper-James stated in terms that evidence had been found to substantiate that staff believed there was bullying on the ward.”
Ms Panahian-Jand experienced retaliatory intimidation from a nursing colleague who physically blocked her path on two occasions. The trust failed to investigate her grievance about this,
“The Trust did not investigate the incident with Miss Hook even though the Claimant reported it to HR promptly and was told it would be reported. That, too, was a disadvantage because the Claimant could reasonably view it to be the Trust not taking seriously a complaint of hostile behaviour towards a whistle-blower/someone who complained of race discrimination. This was contrary to the Trust’s whistle-blowing policy, which made it clear employees should be able to challenge inappropriate behaviour without fear of reprisal.“
Yet the trust speciously justified its hostile actions against Ms Panahian-Jand, claiming it was concerned about her safety. The ET treated this with the contempt it deserved:
“90.4. Mr Steward referred to the safety of the Claimant as an issue because of her complaint. If at that point it was felt she was unsafe, then it was for the Trust to consider suspending/restricting the individuals complained about. It was not within their procedures to suspend a complainant. In December when finally asked about this the Claimant did not have safety concerns.”
Instead of protecting Ms Panahian-Jand from victimisation for raising concerns about race discrimination, the trust effectively penalised her for filing a grievance about being physically intimidated in that it used the grievance to continue her ban from Acorn ward:
“Indeed Mr Steward’s initial email shows that the hold-up is all about the fact of the Claimant bringing her grievance (a protected act) and the potential upset of other staff members. The grievance would not have caused him to restrict the Claimant and should not have caused the continuation of the restriction.”
The ET judgment ended with the following damning comments:
“217. We are concerned that the approach of managers to this complaint seems to have taken little heed of the Trust’s whistleblowing policy. And no manager, even the Director of People, appears to have fully understood the victimisation provisions of the Equality Act. Complainants should not be treated as the problem.
218. Finally, we are very concerned here that the Trust went to the expense of an independent investigation but has then misrepresented and diminished the findings of that investigation to the complainant and the ward manager. Mrs Cooper-James’ found some evidence of potential race discrimination in work allocation and divisions on the ward. These findings were diminished by the Trust’s internal summary (and in witness statements to us) to a point where it hardly appeared that there may be a problem. There is plainly still much work to be done.”
The Times covered the case today but did not acknowledge the ET’s concern about a managerial cover up of investigation findings.
Ms Panahian-Jand may have ‘won’ her ET claim and been awarded £26,083.19 compensation for her pains, but the matter has the potential to seriously affect her career, as the NHS can have a long, vindictive memory. She has also suffered a totally avoidable ordeal simply because a few individuals sought quite foolishly and unethically to manage individual and organisational reputation. There was no existing mechanism in law that she could trigger at early stage to challenge the mishandling of her case.
But will Barts’ misconduct matter? Will the managers involved be held to account, or will they be protected? Did they harm a whistleblower because they believed it was what trust senior leadership expected of them? If so, promotion may be more likely than disciplinary action, but we shall see. I will ask Barts what learning it has taken from this case.
I should say that I have found Barts to be one of the worst trusts in terms of unaccountability and blocking of FOI requests about whistleblowing governance, which points to senior leadership failure.
It is also worth noting that Barts have relied on the private services of a company which specialises in providing outsourced Freedom To Speak Up Guardians. This is a means by which some NHS boards can potentially reduce accountability.
Race at Barts
Barts also has a predominantly white trust board (14 of 18 directors) despite a very diverse catchment area. Seven of eight executive directors are white.
These are Bart’s local catchment population race figures taken from a 2019 trust report on diversity, based on 2011 census data:
Lack of managerial regulation in the NHS
I am not sure if the Head of People for Whipps Cross would be seen as a director for the purposes of CQC Regulation Fit and Proper Persons (FPPR). He appears on the trust website as an associate director:
But CQC has in the past indicated that it would consider whether managers’ roles were effectively director posts whatever their titles.
A gap in the current system is that middle grade managers who harm whistleblowers fly under the radar of FPPR, but may at a future point be promoted to positions of greater power where they can potentially inflict more harm on subordinates.
It is cause for concern that the NHS establishment continues to resist proper managerial regulation.
Whistleblowers need the proper protection of law and strong enforcement systems.
If you have not done so, please sign and help share this petition to parliament for whistleblowing law reform.
As ever, the National Guardian’s propaganda has given Barts a cloak of respectability, albeit somewhat threadbare and moth eaten:
Typical of many NHS organisaitions, Barts has a veneer of diversity propaganda, as evident from its public messaging. A gallery of hypocrisy and wishful thinking follows: