An embarrassing (failed) waste of NHS funds to prevent an NHS Trust chair whistleblowing.

A fortnight ago Sir Robert Francis, author of the landmark reports on the Mid Staffordshire scandal and of the 2015 Speaking Up report said there are still major issues with the behaviour of senior leadership in patient safety and whistleblowing cases https://www.hsj.co.uk/patient-safety/behaviour-of-nhs-leaders-toward-whistleblowers-shocking-says-francis/7039682.article#commentsJump

One week earlier a landmark decision from an Employment Tribunal was published showing how deep the problem is. The former chair of Bradford Teaching Hospitals NHS Foundation Trust from May 2019 to October 2023 had to go to court to gain protection as a whistleblower.

One might ask why on earth was that even necessary?

Surely Trust Chairpersons, of all people, are protected from detriment if they feel as a last resort they have to raise a protected disclosure.

Not according to the Trust who spent thousands of pounds, diverted from patient care, on trying to prove Dr Max McLean was NOT entitled to legal protection as a whistleblower. The proceedings have already cost Dr Mclean many thousands of pounds of his own money just to get to this point.

The Trust lost.

Dr McLean had raised several concerns which included preventable neonatal deaths and the treatment of a member of staff where racism was allegedly a factor. He did so at a time when BME members of the Trust Board were raising questions of their own about governance, alleged racism and patient safety.

Dr McLean – a former very senior police officer with previous experience in NHS governance – resigned as chair after, he says, his position was made impossible after he raised those concerns, by other Board members including the Chief Executive.

I don’t propose to discuss those concerns here though it is worth noting that a truly independent review established by the Trust upheld  all of Dr McLean’s  concerns.

My immediate concern – and that of anyone concerned about NHS governance and whistleblowing in the NHS - is the suggestion that a Trust Chair has no legal right to protection if they do raise such concerns. Since this appears to have been seen as a matter of principle by the Trust one has to assume that, directly or indirectly, NHS England approved their failed decision to fight his claim.

So what did the Tribunal decide (para numbers are from their findings)? https://tinyurl.com/2ka6m46h

8. The issue to be decided at today’s hearing was identified at the Preliminary Hearing as being the following:

8.1.Was the claimant (who is agreed to have been an office holder and not an employee) a worker who is entitled to bring a claim for whistleblowing detriment.

9. It was agreed at the start of this hearing that the above question required consideration of the following issues:

9.1. Does the claimant, who is agreed to be an office holder, fall within the definition of “worker” in section 230(3)(b) of the Employment Rights Act 1996 (“the ERA”) such that he is entitled to bring a claim for protected qualifying disclosure detriment?

9.2. If not, do the claimant’s Convention rights mean that section 230(3)(b) should be read so as to include the claimant to enable him to bring such a claim?

10. At the start of the hearing the respondent (the Trust) informed the Tribunal that:

10.1. It was not seeking to argue that the respondent was a client or customer of any business of the claimant; and

10.2. It accepted that the jurisdiction of the Employment Tribunal was not excluded by wording to that effect in the claimant’s contracts with the respondent.

On the basis of those concessions, it rapidly went downhill for the Trust, not least in the light of this Supreme Court decision:

55. In Gilham v Ministry of Justice in the Supreme Court, Lady Hale, giving the leading judgment, held that:

“16. It is clear, therefore, what the question is: did the parties intend to enter into a contractual relationship, defined at least in part by their agreement, or some other legal relationship, defined by the terms of the statutory office of district judge? In answering this question, it is necessary to look at the manner in which the judge was engaged, the source and character of the rules governing her service, and the overall context, but this is not an exhaustive list.

17. In looking at the manner in which the judge was engaged, it could be said that there was classic offer and acceptance: there was a letter offering appointment….which the appellant was invited to accept and did accept. However, the manner of appointment is laid down in statute….

18….The essential components of the relationship are derived from statute and are not a matter of choice or negotiation between the parties….

35….in this case there is no evidence at all that either the executive or Parliament addressed their minds to the exclusion of the judiciary from the protection of Part IVA. While there is evidence of consideration given to whether certain excluded groups should be included (such as police officers), there is no evidence that the position of judges has ever been considered….

37…. I conclude, therefore, that the exclusion of judges from the whistle-blowing protection in Part IVA of the 1996 Act is in breach of their rights under article 14 read with article 10 of the ECHR….

43…. It would not be difficult to include within limb (b) an individual who works or worked by virtue of appointment to an office whereby the office-holder undertakes to do or perform personally any work or services otherwise than for persons who are clients or customers of a profession or business carried on by the officeholder….None of this would go against the grain of the legislation….”

The Tribunal decided, in the light of the above, that

88. I find that the context in which the claimant performed his duties was, consistent with the Case No:1800746/2024 22 claimant having worker status.

89 There was a contract between the parties, pursuant to which the claimant was required to perform work personally for the respondent, and the respondent was not a client of the claimant.”

So NHS Trust chairs now have whistleblower protection against detriment. What is remarkable is that NHS funds were spent trying to prevent them having such protection.

How is it possible that money intended for patient care was spent defending a position which meant the most senior position in a NHS Trust, the Chair, had the least protection for speaking up?

The Chair is responsible for oversight, checks and balances and social ownership. The last place you want someone not to be protected for speaking up.

Max’s forced resignation was the ultimate demonstration of his vulnerability - he was removed at a Board meeting held in secret.

Dr Max Maclean is certainly not the first Trust Chair (or indeed NED) to become aware of public interest concerns and the consequences of raising them . Despite this NEDs and Trustees have not had whistleblowing protection which means there is no remedy if they are victimised for raising concerns.  That was always a ridiculous position for them to be in.

Dr MacLean’s victory demonstrates they have now.

Par for the course?

Employers frequently resort to trying to undermine Employment Tribunal claims by seeking to persuade judges (at great cost to the taxpayer) and at great financial and health cost to the claimant that the claimant is not entitled to make a claim because:

The claim is out of time

That the claim does not qualify as a whistleblowing or discrimination or harassment claim

A range of other alleged procedural shortcomings – Bradford Trust’s defence was a novel one of these

Dr McLean’s victory is a credit to someone with 43 years of public service at the time of his forced resignation but who is now seriously out of pocket as a result. He should have been thanked by NHS England for clarifying the law to improve NHS transparency. I doubt he has been.

It would therefore surely be helpful for the Secretary of State to at least confirm that he expects the ET decision be observed across the NHS.

Postscript

Dr McLean’s substantive claim against the Trust can of course now proceed and presumably there will be considerable curiosity about those substantive issues the Trust was so keen to not have discussed at ET including whether he was constructively dismissed for raising concerns.

I further understand there are also two other ET claims against the Trust by board members. It seems rather unfortunate both from a governance and financial perspective that such Board members feel such claims are necessary.