By Dr Minh Alexander 22 February 2023
This is a brief post to draw attention to an important case of proven whistleblower detriment by an NHS regulator.
Following on the heels of the Care Quality Commission’s disgrace in Kumar v CQC, and ongoing failures to learn (more of this to come shortly), NHS England has stepped in to take a bow.
NHS England is the National Commissioning Board for the NHS, and it is also a regulator for NHS trusts. Under UK whistleblowing law, it is a so called Prescribed Person with responsibility for receiving whistleblowing disclosures and publishing periodic data about these disclosures.
It is therefore supposed to be an exemplar of good governance and a safe harbour for whistleblowers, but experience shows that it is anything but.
The current case is that of a Ms Cox, who remains an NHS England employee, so her privacy and future employment needs to be respected and protected.
I do not currently have the capacity to do the case justice but will post a summary of the case below.
This is the ET judgment:
Ms Cox, “The Claimant”, worked as Continuing Healthcare Manager in the NHSE North West Region. At the time, she was reportedly “the only black nurse in the respondent’s north region”. She was also part of the CNO’s BME Strategic Advisory Group and had a regional lead role on BME issues.
In the course of her work, she had cause to make several protected disclosures to her immediate line manager, Gill Paxton, regional Head of Continuing Healthcare. These concerned breaches of equality practice by NHS England and also a very important breach of neutrality by NHS England in deploying its staff to sit on Independent Review Panels which decide on the funding of continuing care.
The ET described a breach of internal HR procedure in which a member of the Claimant’s team was earmarked for promotion by Marie Boles the then NHSE Deputy Chief Nurse, and duly promoted by the Claimant’s line manager, placing her on the same grade as the Claimant. The individual also later received a new job title. These actions were without reference to the Claimant as her line manager.
There were other instances of marginalisation and exclusion cited in the ET’s findings of fact.
The ET was critical of the treatment on grounds of Race:
“Ms Paxton created an intimidating and hostile and humiliating environment for the claimant at work; her actions in excluding the claimant were intentional in many regards, and her actions had that effect. The claimant reasonably perceived that she was suffering poor treatment amounting to harassment because of race. She became aware of Ms Paxton’s conduct in early course and sought to challenge it directly but this failed to prevent the conduct continuing. The Tribunal also took account of the fact that being excluded or side-lined in the workplace had a serious effect on the claimant. It led to her being off work, sick, and latterly seconded to work elsewhere in the respondent.”
The ET also criticised NHSE’s witnesses’ and Gill Paxton’s evidence in particular on several occasions. The Tribunal described some of NHSE’s responses to the Claimant’s claim as “excuses”. For example:
“The respondent’s witnesses sought to explain the exclusion of the claimant in terms of matters of pay being confidential. However, the Tribunal takes account of the fact that the NHS is a public sector employer, with agreed and published pay bands. There was no mention of the amount of money involved for any individual and managers ordinarily are expected to know the banding of the staff they manage. In those circumstances, the Tribunal considered that the suggestion of confidentiality amounted to an excuse, given with hindsight, for the actions of Ms Paxton and Ms Boles in excluding the claimant from discussions.”
The Tribunal described Gill Paxton’s evidence as follows:
“When questioned about her actions and the factual allegations, Ms Paxton gave a number of convoluted and at times unsubstantiated explanations. The Tribunal considered that these explanations had been developed with the benefit of hindsight and did not accord with contemporaneous documentation.”
The Tribunal noted that there was no evidence for a claim by Gill Paxton that she had clearance from the legal department to allow NHSE staff to sit on IRP panels, in violation of the rules on neutrality:
“On 28 August 2019, at a monthly 1-2-1 meeting with Ms Paxton, the claimant raised an issue about the respondent’s staff who were sitting on IRP panels. The claimant told Ms Paxton that her team members sitting on IRPs was a breach of independence and legal obligations. The respondent has accepted that this conversation constituted a protected disclosure for the purposes of the whistleblowing complaint (see list of issues 9(ii)). Employees of the respondent had raised the issue with the claimant and some had declined to sit on the panels due to a conflict. Ms Paxton dismissed the claimant’s concern. When another employee queried the practice, Ms Paxton told them that she had “cleared it with legal”. There was no evidence that Ms Paxton had in fact done so.” [my emphasis]
The Tribunal noted that when the Claimant simply carried out her job as BME lead in advising on breaches of equality practice, Gill Paxton found this “difficult”:
“Importantly for the claimant, this development meant that Ms Fletcher, whom the claimant managed, was placed on the same grade as the claimant. When the claimant eventually learned of the matter, she told Ms Paxton that the desire to promote/upgrade Ms Fletcher fell outside of the respondent’s recruitment processes, breached principles of fairness and was contrary to anti-discrimination recruitment practices. The respondent has accepted that this conversation constituted a protected act for the purposes of the Victimisation complaint (see the list of issues, 6(i)) and also a protected disclosure for the purposes of the whistleblowing complaint (see list of issues 9(i)). The Tribunal considered that the conversation between the claimant and Ms Paxton was an example of the claimant fulfilling her brief as regional lead for BME employees and noted that Ms Paxton described this and other interactions with the claimant as “difficult”.” [my emphasis]
The Tribunal also concluded that Gill Paxton had most likely tried to encourage an adverse report of some sort about the claimant’s health:
“On 7 October 2019, while the claimant was on annual leave, Ms Paxton had a conversation with Chrissy Luff, a junior member of the team, about the claimant. Ms Paxton said to Ms Luff that she was concerned about the claimant and asked Ms Luff, “is [the claimant] OK?” In evidence, Ms Paxton was adamant that this was not a question about the claimant’s state of health or mental health and that she did not mention health. However, when asked by the Tribunal to explain what it was about, if not the claimant’s health, Ms Paxton admitted that she was referring to the claimant’s health. In the course of the conversation, Ms Paxton reminded Ms Luff of her status as a nurse, and encouraged Ms Luff to report any concerns she might have about the claimant. Despite this, Ms Paxton, herself a registered nurse, took no action about her own concerns and did not report them nor did she refer the claimant to occupational health. The respondent’s grievance appeal found this to be an inappropriate conversation between a manager and junior staff. The Tribunal agreed with that view. In evidence, Ms Paxton sought to play the matter down, framing her approach to Ms Luff as a general enquiry as to whether the claimant was alright, but the Tribunal considered it was more than that and concluded on a balance of probabilities that Ms Paxton was seeking an opportunity to encourage a member of staff to report the claimant.” [my emphasis]
Perhaps one of the most extraordinary aspects of this case is NHS England’s institutional handling of the response.
The initial grievance failed to uphold the Claimant’s concerns and shied away from issues of Race.
It woefully relied on a purported lack of intent to harm, when this is no defence at all.
The grievance appeal process recognised that the Claimant had been poorly treated, and it concluded that Gill Paxton had been untruthful:
“The Tribunal noted and agreed with the appeal’s conclusions on the matter (bundle page 695) that the episode showed evidence of Paxton being misleading and untruthful.”
Yet it still resisted the final step of joining up the dots and recognising a pattern of actions comprising discrimination on grounds on race.
Astonishingly, no one fed back the outcome of the grievance appeal to Gill Paxton.
The Tribunal considered that this “negated” the grievance process:
“The Tribunal considered that, as a result, the grievance outcome was not effectively actioned and this failure by the respondent negated the purpose of the grievance process.”
“When asked to explain this omission, Ms Grainger told the Tribunal that it was not within her remit and that feedback to Ms Paxton was the responsibility of HR. It was apparent from the evidence that such feedback had never taken place.”
Very seriously, the Tribunal noted that Tracey Grainger failed to examine the “lawlessness of the IRP panels as constituted by Mrs Paxton”. This is another classic example of a whistleblower’s concerns being ignored:
NHS England of course spent a huge amount of money on the Workforce Race Equality Standard initiative, but this is just wasteful tokenism if when it comes to the crunch, the institution chooses to protect the powerful.
It should not have ended in a contested and now lost Employment Tribunal claim.
It was breath-taking arrogance and incompetence that led to this conclusion.
And who would feel safe to whistleblow to this lot?
We should also remember that NHS England is in ultimate control of both the investigation into the deaths and whistleblowing scandal at North East Ambulance Service and the whistleblowing and Mid Staffs type allegations at University Hospitals Birmingham NHS Foundation Trust.
A Fit and Proper organisation that can be trusted with such tasks?
I will send this latest judgment to all Healthwatch organisations in the North West region with respect to potentially unsafe Independent Review Panel decisions, and to the parliamentary Health and Social Care Committee.
PETITION
Please click and add your signature to this petition to reform UK whistleblowing law – whistleblowers protect us all but weak UK law leaves them wholly exposed and it is a threat to public safety
Replace weak UK whistleblowing law and protect whistleblowers and the public
RELATED ITEMS
Mr Tristan Reuser’s whistleblowing case: Scandalous employer and regulatory behaviour on FPPR
Alexander's Excavations 
Thank you, Dr A, for recording and broadcasting this important matter.
“misleading and untruthful.” Perhaps it should be added that the guilty party was and, presumably is, without shame.
Without acknowledgement of shame, there is little chance of redemption.
Heaven help the NHS, its victims and us.
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