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NHS Whistleblower False Allegations of Misconduct


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Hi Everyone,

 

OH made two protected disclosures re poor care to the line manager about 1 month apart. Nothing was done no one followed the whistleblowing policy..in effect ignored. a couple of months later an incident flared up, an argument over a break. 3 weeks later OH was requested to have a meeting under the minor breach policy..no agenda given and no notice of the meeting in fact, straight after a 12 hour shift.

 

At the meeting OH asked what is the meeting about? The sister said your conduct, wife said I'm the injured party..sister said..you might lose your job wife asked why what have I done..sister said I am going to write this you will answer questions and we will both sign it..wife said no sorry..you are part of my problem and this is not fair.. requested another manager lead the meeting then walked out.

 

Wife then called HR who sent her back to the sister, she then went to the matron who again sent her back to the sister..wife came home and sent a senior HR manager all the paperwork i.e. copies of complaints she sent re bullying, the disclosures and a chronology. Later that day and after HR had all the documents the sister again called wife saying you must have the meeting with me and again this is serious you might lose your job.

 

It looks on the face of it that the matron did not pass the whistle blowing to HR, decided she needed to get wife fired, we found out later they were all conspiring to this end. Wife had a meeting with her union but no help.

 

A meeting took place with a senior HR manager, wife took a colleague for support, not an official meeting as such just to give her sick note, colleague told HR that the people involved in the incident had been bullying wife..again HR said this is serious..took no notes then produced 4 pages later..again, the manager never mentioned what the minor breach was about..

 

The HR then said there will be an investigation under WB & BH policies, this will take 3 to 4 months, wife could stay at home on sick with pay, then come back to work etc..( re affirm the contract..too late for a claim).

 

We then wrote saying the situation was untenable as gossip had spread all around the wards, wife resigned due to inaction and breach of contract etc..

 

We then filed a claim with the ET..Detriment following whistleblowing, breach of trust and confidence..

 

There has been a huge cover up and still is..also the HR were helping to sack wife..

 

So far two case management meetings, and hearing set for next year.

 

Anyone care to comment would be appreciated..

 

Nev.

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Hello there.

 

I think you query is more about employment law than the NHS, so I've moved you to the employment forum. The guys should be along to advise over the course of the day.

 

HB

Illegitimi non carborundum

 

 

 

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Have you claimed Constructive dismissal??

 

It is very rare i say that as it is almost impossible to prove but as this is a protected disclosure issue??

 

I take it you have documentary evidence over this protected disclosure such as emails, root cause analysis etc??

 

3-4 months investigation is unacceptable, 28 days will be reasonable

 

I think they were trying to time out any claim to the Tribunal service of three months less one day from cause of action

 

What is the trade union reps opinion on this as it would have been an Area rep who sat in with you??

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Thank you HB..

 

In the order: The claimant brought complaints of constructive unfair dismissal by reason of a protected disclosure section 103A ERA 96 and detriment because of a protected disclosure section 47B ERA. Race dicrimination was dropped, the claim for unfair dismissal can only be brought under section 103A ERA as did not have two years service required for an ordinary unfair dismissal claim.

 

The repondent accepts the disclosures were protected disclosures.

 

The case is set for 4 day hearing next year.

 

Yes, obiter dictum, meant to string things out.

 

The trade union did not attend any meetings, the minor breach we found out later was gross misconduct, with no right to appeal.

 

Nev.

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If you can prove the disclosure was not passed up to HR, or HR failed to do an investigation when notified then they are in big trouble. Especially after the Mid staffs scandal

 

My own opinion this but do not be suprised they offer settlement out of court

 

The adverse publicy, proved or not on conclusion will mean some senior managers heads will roll

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In the ET3: It is admitted that the line manager did not formally escalate the disclosures and deal with them under the formal whistleblowing procedure.

 

We think the line manager passed the disclosures to her manager the matron, who hid them ( now been fired we think). The reason for this was to cover up the complaints. The HR got them from my OH and started the investigation almost 2.5 months later..

 

Funny, we told them if they do not take action they will have another Mid Staffs on thier hands!

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Yes failed is an understatement..do you mean Duty of Candour?

 

We can't really say here what the disclosures relate to other than poor quality care of a very serious nature with devastating consequences being what are known as notifiable incidents.

 

As this is a Foundation Trust the CQC say they are almost self governing and have internal reporting procedures which the CQC take as gospel..they refused to take steps until the next audit in 2016..hiding under the flag of This is an employment issue.

 

The regulator for Trusts is the Monitor, they will look at the possibilty that the Trust is not well lead and may take action accordingly.

 

We have notified the CQC, Monitor, DOH and Jeremy Hunt directly.

 

We wait!

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Duty of Candour as in Regulation 20 Health and Social Care Act 2008 ??

 

Please keep your thread updated

 

It is nice for a change with a constructive dismissal claim for the claimant to have them by the Gonads:-)

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Interestingly they have come up with 5 different versions of what happened..so much for Regulation 20..

 

During the 3 month internal investigation over seen by senior HR people..they have made a 300 page character assanination of wife..who has been under the doctor for the past 6 months..

 

We read an interesting comment on a blog which said:- Mr Fox kills all the chickens and Mrs Fox is put in charge of the investigation..:-)

 

Current situation is thier solicitor is trying to fob us off with unindexed and none page numbered bundle of documents..we have applied to the Tribunal for an order to inspect documents as it is clear they have been altered..

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Has anyone had any experience in an Employment Tribunal where they have requested disclosure of metadata?

 

As we scan through the documents disclosed appears many new documents have been added not previously disclosed under an SAR..

 

Nev.

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Yes, meta data disclosure applications are relatively common. It's a double edged sword though - unless you're convinced they were created after the event (which is highly unlikely as it would amount to a contempt of court) then it can damage your own credibility if you falsely challenged their honesty.

 

Have you sought legal advice? A qualifying protected disclosure has a very narrow definition in law and without that, you have no case. If nothing was done in writing then you may face a very difficult evidential problem.

 

Also 3-4 months isn't an unreasonable investigation period in the public sector, in my experience. I've seen the NHS take up to a year in the past.

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Hi becky2585, thanks for your post.

 

We had been sent 114 pages of extracts from documents during disclosure, when the actual hard copies of the complete documents arrived you can see that they have been altered. Quite a few documents have appeared in the way of documents not revealed at from an SAR. We have applied to the Tribunal to order inspection.

 

The ET3 It is admitted that the documents submitted to the line manager contain disclosures which could amount to protected disclosures.

 

With dedicated departments and staff an investigation should not take 3 to 4 months though, as you say it can. No we have not sought legal advice other than pro bono..

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Nevos, it sounds pretty good so far. Particularly if they've admitted the PDs, which in my experience, is very rare!

 

I agree that it shouldn't take that long - but legally speaking, it's not unusual for it to take that long so that in itself won't help your case. I'm just pre warning you of obstacles so you can be prepared and understand how the facts are likely to be viewed.

 

Don't forget you can also use the cross examination process to challenge the authenticity of any disputed documents.

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Hi becky2585, thanks again..

 

The basic problem we might have goes like this..wife had been basically bullied by 2 co-workers for many months, management were aware of it and did not lift a finger..but, one night shift wife found herself working with the 2 bullies, a nurse who was subject to a PD and a sister who was also a bit anti.

 

An argument broke out over the break allocation because the 2 bullies had left wife in a 1 to 1 situation for hours, not giving her a break etc..the sister being the senior staff should have stopped it all but, she did not say a word. Wife made a statement about the incident and so did the others, they all blamed wife because they had an incentive to do so, wife reported one of them before for pilfering ward stock..the strange thing, there was another nurse working with wife who said he saw nothing and was not asked for a statement.

 

After the incident wife put a grievence regarding the bullies, entitled "On going problem with X & Y" emailed it to the matron. 21 days later the sister in charge during the incident called wife to a meeting after a 12 hour shift..wife asked what is the meeting about thinking it was the argument, the sister was saying it is your conduct on the night shift incident and this is really serious you might lose your job, wife said..I don't want to have the meeting with you because you in my eyes are part of the problem..then walked out.

 

Wife contacted HR sent back to the sister, went to see the matron who said she could not talk to wife go to the meeting, union rep was next..same answer..wife came home and sent all the paperwork to a senior HR manager at 11am, on the same day at 6pm the sister called again, you must come to the meeting this is serious you might lose your job..wife kept asking what have I done? and I told you it's not fair you holding the meeting anyway, I sent everything to HR this morning.

 

Wife then cancelled her night shift she was so stressed and weary..ended up under the doctor with stress and low mood, has had months of counsilling since.In the end felt forced to resign her post, the whole thing and the deceit got to her..

 

From the SAR we found that they were all in on it and they had accused wife of almost everything she put in her PD's..like playing snap.

 

They had planned to dismiss her for gross misconduct..she had been a danger to the staff and patients that night..they were all terrified etc..yet, she worked another 12 night shifts after the incident..

 

In the SAR we were sent 2 statements from the incident type written with a long list of allegations, we asked for the 2 bullies statements but, had to get an ET judge to order it..they both said more or less there was an argument as we expected..

 

Recently during disclosure we can see that the matron said..she was not willing to act on the grievence and that there was an HR manager instructing the sister before the meeting..

 

The HR said we read the statements and it is all wife's fault..

 

One email said: Don't give her a copy of the minor breach until HR have checked it over..we called ACAS they said..you were fired we get loads of complaints like this about the NHS..

 

We were saying to ourselves if you were so bad why didn't they suspend you right away, why wait 3 weeks 12 x 12 hour shifts later etc, the plot thickens, wife did a day shift because they were short of staff, one of the bullies was working a night starting at 7-45pm..the woman claims wife verbally attacked her in the locker room..reported the incident to the night shift nurse in charge subject to the PD ( not the out going day shift nurse in charge)..the sister the one trying to hold a meeting kept calling the ward asking for the bullie..a support worker..(we imagine the conversation went like this X can you say X attacked you in the locker room) wow they all got excited and started sending emails around the world..another incident, this is good!

 

Now we think that this is constructive unfair dismissal though, thier sols are saying because of les than 2 years service the Tribe has no jurisdiction to hear such a claim..it's denied that it is automatically unfair due to the PD's contrary to 103A ERA.

 

We are saying there is a breach of trust and confidence, failures by management to protect wifes health and well being, subjected to a hostile environment..and more.

 

It all sounds crazy right?

 

Nev.

 

PS: My keyboard is a bad spella so plz excuse any typo's

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A complex situation indeed...

 

Breach of trust and confidence is unlikely to apply here with under two years service as you aren't bringing a standard constructive dismissal claim. You need to demonstrate that the principal reason for the "dismissal" was the whistleblowing disclosure or in the alternative, for a health and safety reason...

 

It's a legally complex claim - I know you have had some legal advice but are you in a position to pay for further guidance? Have you been advised what s reasonable settlement offer would be?

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A complex situation indeed...

 

Breach of trust and confidence is unlikely to apply here with under two years service as you aren't bringing a standard constructive dismissal claim. You need to demonstrate that the principal reason for the "dismissal" was the whistleblowing disclosure or in the alternative, for a health and safety reason...

 

It's a legally complex claim - I know you have had some legal advice but are you in a position to pay for further guidance? Have you been advised what s reasonable settlement offer would be?

 

Hi, yes complex indeed as the other side will argue that the negative relationship with colleagues caused the resignation.

 

I had stayed at home to bring three kids up now teenagers one at Uni etc, OH income was our only income so..we are as poor as church mice since this kicked off early part of the year..

 

The average settlement for such cases is £29K have put a schedule of loss with allowance for future loss etc..you know wife just wants justice for the patients and those inflicting harm to be brought to book for it..

 

Some interesting documents have turned up, one bully has put 3 statements one even saying that wife was waiting for her in the street and glared at the woman she ran in to work scared to death..we live 75 miles away and this was alledgedly months after wife resigned..she also said she had to have 2 months off work suicidal..like a bad episode of casualty..

 

..the incident is getting like the Dick Turpin story more fantastic by the day..now wife had the woman pinned against the wall with a chair like a lion tamer lol..

 

Oh was working 60 hours per week, not because she wanted to but, they were always on the phone short staffed..worked holidays. She had mentioned she was stressed out by the problems of poor care..also ended up in A & E twice hurt by dementia patients being violent.

 

Most people imagine a person with dementia to be a sweet little old lady who forgot where the tea bags are..:smile:

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We went to pro bono yesterday a couple of nice law students attended with us.

 

They will examine the issues and get back to us within 14 days..

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The problem in these situations is that people try to cover their own backs. It is always important that people follow any staff guidelines that are provided, as they are there to protect them. And keeping full records is very important, with a diary recording issues faced and what you did about them. I don't think i would work in such an environment unless i had some form of legal cover for costs, either via the union or policies available.

 

My experience with a relative in hospital is that junior Doctors and the Nurses are rushed off their feet in wards which appear to have too many patients. I can remember urine samples requested being left around for ages, until they were taken away. The consultant seemed to have 3 wards to look after and there was a lack of any urgency in getting all the various tests done. In a private Hospital, they would have much more personal attention and all the tests would have been done without delays. This was sometime ago, but from reports i wonder whether it has changed. Given the tight budget situation and growing elderly population i should imagine that standards will slip.

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Hello unclebulgaria67 and thanks for your post..

 

The environment is difficult that is true however, there is no excuse for not giving the basic standard of care. There is still a culture of cover up despite the Francis Report Following the Mid Staffs Trust inquiry..

 

The problem I faced personally was that the ability of some nurses was sadly lacking, I made 2 disclosures which were ignored..the sad fact is some staff work thier socks off while others are very lazy..we were under staffed for the type of ward i.e accute elderly..it was a disaster waiting to happen..

 

When patients and families complained they were ridiculed by staff, it was so bad staff were taking pictures of the neglect..the ward IMO was out of control due to loose management style and cover ups..

 

Yes, I went to my Union but, they refused to help, what people don't realise is that the Unions are in bed with management..double dealing the staff..I had a long letter from the regional office underlining the fact that they are not willing to help..

 

People also make the mistake of thinking HR are on your side, totally wrong again..everyone will close rank and try to discredit you..people who say they support you in speaking out..simply mealt away..

 

My disclosure would make anyones hair curl I can assure you of that..

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The only reason why a trade Union would not represent you is if their legal services department considered your claim was unlikely to pass the threshhold test. That being % win or lose at a tribunal.

 

I myself have taken a case to tribunal when declined by the union branch. I was sucessful through an out of court settlement but that does not alter the fact what you consider is winnable, and what others consider are totally different, including solicitors

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Hi, thanks for your reply.

 

What happened with the union was simply that the Unison local rep based at the Hospital took the side of management and did not consider OH's view. In fact they condoned everything that was happening..wife made 22 calls to the rep who simply ignored her.

 

Fact is Unison is a busted flush and very short of cash, just do a search on Google and read the stories about members who had paid in for 30 years and got no help at all.

 

If you are a member of Unison reading this then our advice would be to cancel your payment asap..Oh yes, they even said wife had not been a member long enough which was total BS..

 

Chocolate fire guard..

 

If you obiter dictum took settlement were you gagged?

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No i was not gagged

 

I used case and statute law against them

 

They made an offer myself and the member were both satisfied on so the claim was settled via a consent order

 

Just a point as well, the local rep would not make a decision as to the viability of any clam.

 

After a member has been dismissed and appeal instigated legal services at the union branch head office will then take over deliberating the chance of winning at a tribunal. The file then gets passed up to the Trade Union head office.

 

The local rep is simply not qualified on such issues.

 

It has to be done that way as it is a statutory obligation on the Trade Union under the:

 

Trade Union Labour Relations Consolidation Act 1992

 

If not the Trade Union can be sued by the member so excuse me if i take your version of events with a bit of scepticism

 

If the Trade UnIon are not acting in your perceieved best interests after it has gone to the Trade Union head office you go above their heads to the Government regulator. That being the Central Arbitration Committee (CAC)

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Hi obiter dictum, it's fine I can only tell you what happened.

 

We tried to complain to the Unison Head Office, they said it has to start with the local rep however, with a multitude of phone calls and text messages she just ignored us..we then read a lot of similar stories on line..cancelled the membership, we did not want a further fight on our hands to be honest..

 

Nev.

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