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Employment Law News

 

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Will NHS Whistleblower ‘Gagging Orders’ Soon Be Confined to the History Books?

In a recent piece in the British Medical Journal (BMJ), I was asked to comment on the use of so-called ‘gagging orders’ within the NHS and whether they are legally enforceable. In my experience as an employment law solicitor, even with such an order in place, there is nothing to prevent an NHS employee from making a ‘protected disclosure’. After all, if that individual has reason to believe criminal activity is going on, or there is a real threat to the health and safety of staff or patients, this must be brought to the fore. In the following article, my aim is to explain what is really going on in our healthcare system with regard to the treatment of whistleblowers, why some who do blow the whistle are subsequently barred from speaking out after the event, and the regulatory perspective on NDAs designed to gag whistleblowers from speaking up.

Promises to ban ‘gagging orders’ are nothing new

The NHS has heard it all before. In 2013, Jeremy Hunt, went on the offensive over the use of gagging orders in the NHS, stating there would be “consequences” for NHS executives if they were found to have wrongly gagged a former manager for raising concerns over patient safety. Speaking to Radio 4 in 2013, Mr Hunt stated “firstly, we must have a culture where people are not afraid to speak out and secondly I was very concerned that it appeared that someone was being leaned on not to speak out and most of all I want to get to the bottom of whether there is any truth in what he was saying.” 

At the time, whistleblowing was in the news because Gary Walker, the former chief executive of United Lincolnshire Hospitals Trust, publicly stated he had been sacked in 2010 for raising concerns regarding patient safety ahead. Six years later in 2019, it was our new Health Secretary, Matt Hancock, who stated he was “determined to end” settlement agreements which infringe on the rights of staff to blow the whistle.  Quite whether Mr Hancock can succeed where Mr Hunt failed remains to be seen.

Are gagging clauses worth the paper they are written on?

In the case which caused Matt Hancock to raise his concerns, Sue Allison, a specialist breast radiographer with 34 years’ experience had entered into a settlement agreement with her employers after she raised concerns in 2012 over missed cancer diagnoses and poor standards of care within a breast care department at Morecombe Bay NHS Foundation Trust.  According to Mrs Allison’s account, she was “bullied, defamed and blacklisted within the NHS”.  She has also struggled to find new employment since 2012.  In March 2019, the Employment Tribunal heard her case and it was determined that the NDA was, in fact, invalid, and Mrs Allison had a “prima facie case of whistleblowing detriment” and, therefore, should be permitted to bring a grievance relating to her mistreatment without being gagged.

This case demonstrates the hard reality that the NHS is continuing to misuse non-disclosure agreements (NDAs) as a means to prevent whistleblowers from speaking out.  And, worse, the gagging clauses contained within these NDAs are often not valid. 

In my own experience, every settlement agreement I have read has contained some form of confidentiality (gagging) clause.  Even if the law allows an NHS employee to raise a ‘protected’ disclosure, they are often prevented from being open about what happened to them once they have entered into an agreement with their employer, preferring to say nothing for fear of being in breach of the settlement.

The SRA’s perspective on NDA’s to prevent whistleblowing

Recent high-profile cases, such as the one involving Harvey Weinstein, show how those in power have used NDA’s to silence people from speaking openly.  Even Weinstein’s own assistant, Zelda Perkins, was subject to an NDA, which she eventually broke when she spoke to the Women and Equalities Committee inquiry into workplace sexual harassment.  Her NDA, which was entered into under considerable duress, was written in such a way as to prevent her from speaking to anyone about what she had seen and experienced while working with Weinstein.

Responding to mounting pressure, in March 2019, the Solicitors Regulation Authority (SRA) published guidance specifically intended to warn against the use of NDAs which are intended to make a person feel they cannot report wrongdoing and threaten litigation or other adverse consequences if they do so.  They have also recommended the possible use of a “cooling off” period for employees who have entered into an NDA.

Solicitors acting on either side of the fence need to be very careful about the wording and effect of NDAs.

Final words

The bravery of whistleblowers to bring attention to wrong-doing, dangerous behaviour, threats to patient safety and misconduct should be supported and not suppressed.  We have acted in numerous complex, high profile and high value cases, pushing the boundaries of whistleblowing law in favour of the whistleblower each time.  Those in power that continue to perpetuate cover-ups have no place in our private and public institutions.  In the context of the NHS, such behaviour is blatantly dangerous and potentially places lives in danger.  If you are considering blowing the whistle, but are unsure of your rights, or concerned you may pay a significant price for your honesty, you should speak to an employment lawyer without delay.  Not only will they explain your rights and protections under the law, but they will also provide support and guidance.  BDBF has won some of the highest whistleblowing compensation claims for its clients. Remember, you are on the side of right and justice – and your brave actions may just prevent harm to a member of staff or patient.

If you have any questions regarding employment law matters, please do not hesitate to call us on 020 3828 0350.

BDBF are a leading firm of whistleblowing and  employment law specialists in the City of London.

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Employment Law News

 

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USE OF WHATSAPP MESSAGES TO BRING DISCIPLINARY PROCEEDINGS AGAINST POLICE OFFICERS WAS NOT A BREACH OF PRIVACY RIGHTS

The Court considered that there was a legal basis for the Police Service in Scotland to bring misconduct proceedings against individual police officers based on messages they had sent to each other on a WhatsApp group. This would not have applied had they not been under professional obligations to maintain standards.

An investigation took place into sexual offences within the Police Service of Scotland. During this investigation, messages sent via WhatsApp on a phone belonging to a suspect, who was a police officer, were found and reviewed. The messages formed part of two group chats between officers.

The messages were deemed “sexist and degrading, racist, anti-Semetic, homophobic, mocking of disability” and having a “flagrant disregard for police procedures by posting crime scene photos of current investigations.”

Misconduct charges were, therefore, brought against a number of officers who then brought a claim complaining that using their Whatsapp messages to bring non-criminal misconduct proceedings against them was unlawful and a breach of their rights to privacy under the European Convention on Human Rights.

The Court found that an ordinary member of the public using WhatsApp could have a reasonable expectation of privacy. However, unlike members of the general public, officers are subject to certain police Standards and Regulations. By becoming an officer, they have accepted that their right to privacy is limited to the extent set out in those regulations. If, in their private life, an officer were to act in such a way that it “is likely to interfere with the impartial discharge of his duties or is likely to give rise to the impression among members of the public” then they can have no reasonable expectation of privacy.

One purpose of the Standards is to maintain public confidence in the police. Here, the officers were exchanging messages within a group of people whom they knew were under a positive obligation under the Standards to report the type of messages that were being sent. This fact alone increased the risk of disclosure by a member of the group.

It was deemed to be justified to interfere with the right to private life in this way as it was necessary for public safety. An officer who fails to meet the Standards is likely to lose the confidence of the public. Since maintaining public confidence is essential for successful policing, anything which exposes a mind-set where the public’s right to be treated fairly is called into question and would put public safety at risk.

The Court was clear that for the average individual, who does not work in a regulated environment, messages such as these will remain private regardless of how unpalatable their content is. Nevertheless, for those subject to professional standards or working in regulated industries, there will be limits on the right to keep such messages private. This will include solicitors, barristers, doctors and financial services workers etc.

BC and others v Chief Constable Police Service of Scotland and others [2019] CSOH 48

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The EAT has clarified the circumstances in which an employee can fairly be dismissed for gross misconduct.

Gross misconduct is defined as conduct which is so serious that it undermines the employer’s trust and confidence in the employee and entitles it to dismiss without further notice. Usually, this will be a single, clear act of serious misconduct. However, the EAT has held that this need not be the case, and gross misconduct can be comprised of a series of acts of misconduct which would not be sufficient reasons to dismiss if taken individually.

The employer’s decision to dismissal summarily was found to be fair on the facts of this case. The employer was an NHS Foundation Trust, and it had introduced new Department Rules and Responsibilities to the Trauma and Orthopaedics department. Having notified all staff that compliance with the new rules would be monitored, a subsequent investigation found non-compliance by 5 consultants in the department. Disciplinary action against three of the consultants resulted in a first written warning, a final written warning and a resignation respectively. In contrast, the Trust concluded that the allegations against the fourth consultant, Mr Mbubaegbu, were cumulatively serious enough to justify summary dismissal on grounds of gross misconduct. This is despite the fact that Mr Mbubaegbu had previously worked for the Trust for 15 years with an unblemished disciplinary record.

The EAT held that Mr Mbubaegbu had not been unfairly dismissed. It stated that it was not necessary for an employer to point to a single act and identify it as gross misconduct, as a series of acts can be serious enough to undermine the relationship of trust and confidence between the employer and employee.

This case emphasised that the right way to look at a gross misconduct dismissal is to consider whether the employee’s conduct had undermined the employer’s trust and confidence in them. The misconduct does not necessarily have to take a particular form for that to be so. Fundamentally, this does not change the inquiry expected of the employer in relation to misconduct; it remains necessary in every case for an employer to keep an open mind as to the appropriate level of sanction, whatever the nature of the allegations against the employer.

Mbubaegbu v Homerton University Hospital NHS Foundation Trust UKEAT/0218/17

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