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CAUSE (UK)

Campaign Against Unnecessary Suspensions & Exclusions in the NHS

Web site:www.suspension-nhs.org

E-mail:enquiries@suspension-nhs.org

Blog: http://www.nhsmanagersexposed.blogspot.co.uk/

Campaign Co-ordinators: Julie Fagan, Craig Longstaff, Andre Downer, Elsie Gayle (midwifery spokesperson), Dave Williams (Welsh spokesperson - click here for Welsh info) and Kate Wynn (Scottish spokesperson - click here for Scottish info).

If you or someone you know has been suspended….

This site has been set up because the members of the team have survived suspension so know what a devastating, lonely and humiliating experience it is. By its very nature, it cannot be described as a neutral act and this has now been recognised in law (see http://www.bailii.org/ew/cases/EWCA/Civ/2007/106.html) also the footnote to http://www.bailii.org/ ew/cases/EWCA/Civ/2012/138.html)

Why these pages have been written

These pages have been written to give you information and to assure you that you are not alone. Since the web site was started in June 2003, hundreds of NHS employees have contacted us, the majority of whom were nurses or midwives. This is just the tip of the iceberg.

Some were whistleblowers who had the whistle blown on them instead. Some have had false and unsubstantiated allegations made against them by patients known to do this and for some unknown reason the patient is now being believed. Some have made a mistake such as a drug error, owned up to it but been dealt with harshly. Of course they would never ever make that mistake again……The culture of blame in the NHS hasn’t changed – yet. The worst case scenario is where another member of staff has made an error and lied to protect themselves.

Defending Yourself

These pages have also been written to help you defend yourself. Now that a manager has wrongfully suspended you, the likelihood is that he or she will try and find other reasons for action against you, for example to justify suspension/exclusion, to justify their failures; to cover up or to silence and/or remove you. (See Help and resources: Exclusion - Crisis Management Guide).

Many times, people’s defence has been ignored. There is then a disciplinary meeting where again your defence is ignored and you are punished in some way.

In the worst case scenarios, you will be found guilty of gross misconduct and you will be dismissed. You then have the right of appeal. (See Help and resources: Dismissal or disciplinary action – formal appeal)

You will also be reported to the Nursing and Midwifery Council. There is often a backlog of cases and you will not be employed again in the NHS (should you want to now) until you have managed to show you are fit to practice and the NMC find no case to answer.

This must sound very negative to you. It is born out of personal experience of the team and of many other people who have contacted us.

You and your family and friends now have to become very knowledgeable about employment law and the benchmarks relevant to your case (see below).

There is a lot of material in the Help and Resources section on our website to help you.

Defending yourself can be summed up in this way - keep to the basics and facts and you won’t go wrong

The basics, in no particular order of importance –

1. Know the law, list it and cite what has been breached. See the ACAS Code of Practice which is on their website (http://www.acas.org.uk helpline 08457 474747) . They also have a very informative handbook to buy.

2. A very helpful legal book is "Legal aspects of Nursing" (Bridgit Dimond 2008) (employment, civil, criminal and clinical aspects).

Know the benchmarks relevant to your case for example organisational and departmental policies, procedures, protocols and pathways. Refer to them, list and if possible, prove what you have adhered to. List and if possible, prove what they have breached, the effects and the possible consequences to them.
4. Know the NMC code, list it and cite what management has breached and what you have adhered to.

5. Know how to write professional, robust letters, and how to present information in a robust way (see guide in the Help section).

6. Regarding the evidence shown to you - scrutinise everything, spot the inaccuracies and prepare questions to cross examine.

7. There are 2 case laws that show that where an employee maybe unable to work again in their profession, then the employee has the right to legal representation at internal disciplinary, dismissal and appeal hearings. See Kulkarni v Milton Keynes Hospital NHS Trust, and the Court of Appeal decision in G v X School, which is authority for the proposition that Article 6 European Court of Human Rights requires that a claimant should be afforded an opportunity to be legally represented at a disciplinary/appeal hearing where it was determinative of a right to practise a profession. Daniel Barnett, Employment Lawyer. See http://www.danielbarnett.co.uk

8. There is also a very helpful document that will show you if your employers have failed in their duty of care to you. You will be able to use it by quoting the relevant sections in your defence. See

http://www.nhsemployers.org/Aboutus/Publications/Documents/NHSE_briefing69_180110.pdf

9. You need to be assertive without being aggressive. People are often worried about causing further damage to their case by being assertive. You are trying to protect your professional reputation. Remember that you may also be fighting for your career.

10. Try and go for a win win outcome with your employers. In some situations such as where managers are trying to cover up poor practice, this may not be possible.

Independent Human Resources Advice

A contact has told us of the excellent service provided by Charlotte Coupe at www.problemsatwork.org. See her website for information and charges.

See also www.publicworld.org ‘democracy at work’ for help with whistleblowing, letter writing, getting the best from your union rep and much more.

Do your managers have the right to suspend you?

There are now meant to be safeguards for staff, which mean you must not be suspended unless the situation meets certain criteria and only as a very last resort.

If your managers have read the relevant documents they are ignoring them and they can, as there is no monitoring of their actions and nothing to prevent them doing so.

(If you work in Scotland please read the information Kate Wynn has provided since Scotland has the PIN Guidelines and different laws.)

The first document you need to read is: Handling Concerns about the Performance of Healthcare Professionals: Principles of good practice. See ‘The documents you need to read’ section.

The second document you need to read is The Incident Decision Tree mentioned by the English Chief Nurse in her document. Produced by the National Patient Safety Agency (NPSA), it is a flowchart to help managers decide what action to take if a patient safety incident has occurred or has been alleged. (see http://www.npsa.nhs.uk/idt). Again, see ‘The documents you need to read’ section.

Next and very importantly - What else you need to do. See the Help section where Craig Longstaff has produced probably everything you might need to fight your corner – checklists, helpful documents such as Freedom to Care’s Charter of Accountability and proformas. They are detailed and comprehensive, and all free and downloadable. Take your time working through the documents that are relevant to your situation. Ask family and friends to help you with them if they can. We are very grateful to Craig for making them available to all who need them including of course union reps to help them represent you in an informed and proactive manner. (It would save an immense amount of time and heartache if the investigating managers and human resources staff would use them too to stop the unlawful suspensions and deal correctly with the necessary ones.)

Your union

You will probably have contacted your local union rep by now. Thankfully there are some excellent local union reps who have sacrificed any chance of promotion in the interests of justice and fair play. Sadly they are in the minority. The same has been found of union fulltime officers. Some are excellent and very overworked but many are disappointing and appear to do little to protect the union member, even colluding with management. (See the report ‘The role of unions in NHS suspensions’ on this site.)

If you are not satisfied with your rep then ask the union to provide an alternative person.

Your rep will need you to keep your documents in order, to write a factual statement of what occurred and to try and keep to the point when you speak to them – very difficult when you are greatly distressed. People wish the rep would take over for them but they don’t have the time and you know the story better than anyone. Remember the Help section – it is all there for you. Please let us know if anything is missing.

What if you don’t belong to a union?

See if they will at least give you advice if you join now.

What else you can do

You need to read the disciplinary and capability policies of your trust. The Human Resources department will supply these to you.

The ACAS website is very helpful with a guide to best practice regarding grievance and disciplinary procedures. They also have a helpline – 08457 47 47 47 Monday to Friday 8 am to 8 pm.

Check your household insurance to see if you have legal cover in case you need to consult an employment solicitor. See Legal Expenses Insurance page for important information regarding your rights.

Be prepared for the worst. The managers now have to show their action was justified. Occasionally the outcome is that there is no case to answer. I only remember hearing of letters of apology a couple of times and cannot ever remember there being a public announcement to clear the person’s name.

Where there is a malfunctioning organisation there is a dearth of integrity, honesty, compassion and insight. It is shocking we agree.

Making your defence

Being denied contact with colleagues and the workplace, is not only an infringement of your human rights, it also makes producing a defence extremely difficult. Craig has identified the illegalities of what the Department of Health is doing, breaking the Employment Law of 2002 by , breaching human rights – eg to a fair trial - to name just two. I remind you that he has produced the proformas you can use as you now try and defend yourself.

Please see the HELP section for the documents or you can use this template:

(LOOK AT the Equality and human rights commission tel: England 0845 604 6610 Scotland 084 604 5510, www.equalityhumanrights.com website - Click on human rights(hr) then click on using your hr and then
What are your HRs to perhaps give some more reasons why you should be able to contact your friend.)

Suggested Template

I write in respect of your instruction that refuses me contact with my colleague who is currently suspended from work. (For suspended people - I write in respect of your instruction that refuses me contact with my colleagues while I am currently suspended from work.)

I have been instructed via an ACAS helpline adviser that there is no legislation that supports your instruction. I have also been advised via a Human Rights Commission adviser to write to ask you to show that your instruction is proportionate and reasonable.

I understand you may be infringing the Human Rights Act 1998 Article 8 that allows me the right to respect for private and family life. My colleague(s) is(are) a personal (and family) friend.

Your actions have to be a ‘proportionate’ response, no more than is necessary and is appropriate and not excessive in the circumstances.

I believe it is unreasonable and discriminatory to prevent my contact with her/him unless you can show otherwise.

Please reply to me in writing within 10 – 14 days.

Yours sincerely

People have no idea of the devastation suspension causes to individuals. His or her energies are now spent producing a defence when no access to colleagues or work is allowed, trying to gain the support of the union rep who may or may not believe they are innocent, and reading policies and documents to discover what should be happening. The trusts are so corrupt that the investigation and disciplinary hearings will be a farce and the staff member may be found guilty in some way, even dismissed. Public money will be used by the organisation to employ solicitors for an employment tribunal and they will probably settle out of court with some undisclosed sum on the eve of the hearing.

Looking after yourself

See ‘The effects of suspension’ page and ‘Coping with suspension’ page

Finally these pages have also been written to campaign to try to end unjust and unnecessary suspensions, in the hope that others will be spared this trauma. See Campaigns section. The more people who contact us and then stay in touch and help, the more chance we have of the Government, the Department of Health, NHS Employers and the unions for example, taking us seriously.

However we also appreciate that for many people, the trauma of what has happened to them makes this a danger to their health and such support is not possible or practical. Making contact alone helps us.

Contact us through enquiries@suspension-nhs.org. You should receive a reply within four days to six days though hopefully much sooner. If you hear nothing, please check that your email is still working and try again. Some people have made contact and then their email address won’t accept the reply.

Your email may have gone into the Spam section – try a single word in the heading such as ‘suspension’ and without any full stops or commas after it. Just very rarely, emails have gone right out of date order – another possible cause for delay in receiving a response.

Be assured that your details will be treated in the strictest confidence. Please don't give any names or places as this is a dismissable offence.

Very best wishes

Julie Fagan on behalf of the team.

PS one contact sent me this information recently

I recently signed up to Daniel Barnett’s email, I wish I'd known about this before... I think the outcome of my Appeal might have been quite different...

http://danielbarnettemploymentlaw.blogspot.com/2009/07/right-to-legal-representation-at_24.html

The documents you need to read

The first document you need to read is: Handling Concerns about the Performance of Healthcare Professionals: Principles of good practice. These were jointly published in September 06 by the Department of Health and the National Patient Safety Agency for all non medical staff working in England.

Scotland has the PIN Guidelines. See Kate Wynn’s section.

Your organisation, if English, should be following the Principles. To access them, see www.ncas.nhs.uk/EasySiteWeb/GatewayLink.aspx?alId=9333. They were written to ‘help to ensure equity and fairness in the way staff are treated’.

If these Principles are being ignored, contact janecummings@nhs.net and ask for her intervention. You may or may not receive a reply telling you that she cannot become involved in individual cases but it will be evidence that the Principles are still being ignored. In your email also inform her of the devastating effect this is having on your health etc. These people have no idea hence their lack of interest in these injustices.

Here is an example of the some of the content of the Principles on page 15

Gathering information – undertaking an investigation

Investigation involves gathering all pertinent facts to help understand the basis of the concern. Information required to clarify the facts should be acquired speedily (normally within four weeks). This may include obtaining written or oral material from staff, patients, users of services and witnesses. It should also include a written or oral statement from the practitioner concerned. Full records should be kept of all
information obtained. Investigation may draw on methods such as root cause analysis and the National Patient Safety Agency incident decision tree.

Deciding what to do

Once the necessary information has been collected a decision will be required about whether the case needs to be taken forward. This should normally be made by individuals who have not taken part in the investigation. If the case is not to go forward, then the practitioner should be informed, and if they have been excluded, arrangements made to support a prompt return to work (see section on page 19: Aftermath and rehabilitation).

Where a case needs to be taken forward, the practitioner must be informed, in writing, of the exact nature of the allegation, the procedure that is to be followed, the possible sanctions that may be applied and the likely timescales. They should be supplied with the records of statements of individuals who have provided evidence, relevant disciplinary and grievance policies and should be encouraged to seek
representation from their professional body/trade union or defence organisation.

An employer should seek advice from an HR specialist within the organisation who may, in complex cases, suggest legal advice is also sought.

You will see from reading the Principles that most frustratingly some if not all of the Principles are being ignored. Once again we ask you to contact janecummings@nhs.net and inform her. You may or may not receive a reply but at least she will know they are still not working.

The second document you need to read is The Incident Decision Tree mentioned by the English Chief Nurse in the example above. Produced by the National Patient Safety Agency (NPSA), it is a flowchart to help managers decide what action to take if a patient safety incident has occurred or has been alleged. (see www.npsa.nhs.uk/idt ). Its purpose is to help ‘promote an open and fair culture in the NHS’ and ‘to help managers determine a fair and consistent course of action to take with staff following a patient safety incident’.
This is more fully explained in ‘Information and use’ of the Incident Decision Tree which gives examples of situations that demonstrate what might have been intended and what action to take. It stresses the importance of supporting and protecting staff.

The alternative to suspension, if there are concerns about the clinician’s practice, is to place restrictions on their practice, for example not administering medicines if they have made repeated drug administration errors.

There is also the need to look at systems and learn from the incident. The questions to be asked are how the incident happened and why. The NPSA web site has a learning tool for conducting root cause analysis. This is a way of looking at critical incidents and near misses to look for systems failures and learn from them, to prevent re-occurrences.

Recording Meetings - is it legal?

There are circumstances when both employees and employers may want to record formal meetings, for example in the hope that this supports their position should a claim be raised in the future. Employment lawyer Hayley Johnson considers the extent to which there is any right to record such meetings and the pitfalls of doing so.

Q Does an employee have the right to record a disciplinary or grievance meeting?
An employee does not have the right to record a meeting. Meetings may, however, be recorded with the employer's consent.
In practice, recording meetings may make those taking part uncomfortable and so may not be helpful to the conduct of the meeting. As a result, rather than recording a meeting it is preferable to have a neutral person present to take notes, which may be circulated and agreed afterwards.
Employers may wish to review their applicable procedure to state expressly that employees are forbidden from recording hearings, if this reflects the response they would give if asked this question by an employee. This will assist in managing employees' expectations.

Q Can allowing a meeting to be recorded be a reasonable adjustment for a disabled employee?
Yes. For example, an employee who is not able to take his or her own notes of a meeting due to a physical or mental impairment that prevents him or her from doing so may ask for an audio recording of the meeting as an alternative.
If a disabled employee asks to record the meeting, the employer should consider:
whether or not recording the meeting would remove any disadvantage that employee has; and
whether there are any alternative options which could remove the disadvantage; for example, would the employee be happy to rely on notes taken on his or her behalf by a companion accompanying him or her to the meeting?
If recording the meeting would not remove any disadvantage or there is a reasonable alternative way of preventing the disadvantage, the meeting need not be recorded.

Q If an employee records a meeting covertly, can they use it as evidence at an employment tribunal?
Yes. Employment tribunals take a generous view on what evidence is admissible. The fact that a meeting is recorded in secret does not mean it cannot be used as evidence.
The exception here is that the covert recording of private deliberations (for example, discussions about what the outcome to a disciplinary hearing should be) may not be admissible due to public policy reasons. The case law in this area suggests, however, that even these deliberations may be admissible if the employee involved says that they are the only evidence of alleged discrimination.

Q Can an employer covertly record a meeting?
This is not advisable. It is only in very exceptional circumstances that employers can record meetings covertly without breaching the Data Protection Act 1998.
The Information Commissioner's guidance on the Act's application in an employment context, the Employment Practices Data Protection Code, says that employers may record their employees in secret only in very exceptional circumstances, such as where it is suspected that criminal activity has taken place. This is unlikely to apply to disciplinary and grievance hearings.

In addition, a covert recording may breach the employee's right to private and family life under art.8 of the European Convention on Human Rights, unless the employer can explain why it was a proportionate way of achieving a legitimate aim.
Employers will also be mindful of the negative impact that recording meetings covertly could have on workplace morale if their employees find out a meeting was recorded in secret.
Employers may always record a meeting with an employee's consent. If they record a meeting in this way, they should remember that this is "personal data" and should be processed as such in accordance with the Act's principles in the same way that they would treat the individual's personnel file.

Hayley Johnson is a senior solicitor in the Brodies employment team; additional research was carried out by Iona Mitchell, a trainee solicitor in Brodies employment team

http://www.personneltoday.com/articles/02/10/2012/58878/legal-qampa-recording-disciplinary-and-grievance.htm

Visit Julie Fagan's blog: http://www.nhsmanagersexposed.blogspot.co.uk/

 

Disclaimer
CAUSE (UK) provides its services and resources on an informal basis only. Members of CAUSE (UK) providing services and resources have no formal legal training or qualifications. Except for publicly available official publications, material and correspondence, the information provided by or on behalf of CAUSE (UK) is based on individuals’ experience(s), recognising that every situation and circumstance is unique and thus needs to be judged on its own merit(s). You are advised to seek independent advice from a qualified and registered professional before taking any formal action. CAUSE (UK) will not be held responsible for any consequence resulting from ignoring this disclaimer.