Shooting the Messenger

The NHS has been in the lime light in the last few weeks and for all the wrong reasons. Recently, the former CEO of the United Lincolnshire Hospitals NHS Trust, Gary Walker, was interviewed about the manner of the termination of his contract on the BBC’s Today programme. Mr Walker was dismissed in 2010 for gross professional misconduct (allegedly related to Mr Walker swearing in meetings). Mr Walker disagrees, saying that he was forced to resign from his post after he made the decision to ignore government targets for non-emergency operations because there were more urgent cases to deal with at the time.

He said that he was ordered by the East Midlands Strategic Health Authority to meet the 18-week non-emergency target “whatever the demand”. However, he chose to meet the requirements of emergency care first.

After starting an employment tribunal claim for unfair dismissal, Mr Walker withdrew the claim and signed a compromise agreement, on the understanding that he would not discuss the issues he had dealt with concerning patient safety at the Trust. He was paid around £500,000. Mr Walker said that he was forced to accept because of the fear of not getting another job and the need to provide for his family. However, his interview with the BBC means that he could now be in breach of the agreement and could be required to repay the settlement he received, as well as his employer’s legal costs.

The Francis report into the Mid Staffs scandal recommended a ban on ‘gagging orders’ on NHS whistleblowers, resulting in Mr Walker’s case being raised in the Commons.

At present, it is unlawful for an employer to subject a worker to detriment on the grounds that he or she has made a protected disclosure which has been made in good faith. The Department of Health has said that the Government has taken a series of steps within the NHS to encourage the communication of concerns. This includes ensuring that employees are not subjected to a detriment after making qualifying disclosures about matters such as safety, malpractice or wrongdoing. The DoH considers that the inclusion of gagging clauses in contracts of employment and compromise agreements which seek to prevent the disclosure of information which is in the public interest should be discouraged.

It would be reasonable to think that if standards were dropping, and there were serious issues in the running of our hospitals, those who were aware of it would be able to speak out in an honest and timely way. Yet, according to Mr Walker, it’s the culture of “fear and oppression” within the NHS that’s preventing people from doing so. “…If you work in the NHS and you cross the people in power, there will be consequences for you,” he said.

Many companies now have a whistleblowing policy to enable employees to know when and how to make a protected disclosure and in what circumstances it is appropriate to do so. Much whistleblowing is internal and it’s actually a good idea. It’s almost impossible for you to be fully aware of what’s happening in every part your business and what people get up to behind your back. Employees need to know where to go and who to see if they want to report a wrong-doing.

Where whistle blowing is concerned, there is a lot at stake for both employers and employees. Whistleblowers may fear that you’ll be tempted to ‘shoot the messenger’ – as in Mr Walker’s case - so reassuring them otherwise is important. And then there is the risk of ruining your business and its reputation if serious allegations go public. It’s always best to find out about problems and resolve them as soon as possible.

Having a clear policy will help you to avoid these types of situations from occurring. A climate of open communication, supported by a clear procedure for disclosing concerns in a timely and objective fashion is helpful for everyone. If you would like help with drafting a whistle blowing policy then please get in contact.