Whistleblowers being ‘blacklisted by NHS’
Staff records for those who raise the alarm state they were ‘dismissed’ even after being cleared at tribunal
WHEN Maha Yassaie began to suspect that a colleague was taking money from drug companies to prescribe a certain product, and that a GP had obtained controlled drugs to attempt suicide, she naturally raised the alarm.
But after reporting these and other concerns about colleagues, the former chief pharmacist at Berkshire West Primary Care Trust was dismissed.
Lady Yassaie, whose husband is Sir Hossein Yassaie, a technology entrepreneur, was told by an internal inquiry that she was “too honest” to work for the NHS.
It should have been a moment of vindication when she was awarded £375,000 in compensation after the Department of Health (DoH) was forced to admit that “the investigation and disciplinary processes … were, in some respects, flawed”.
Over the next four years, however, Lady Yassaie failed in every attempt to find a new job, despite her experience and qualifications.
It was only when she obtained her staff record that she discovered officials had effectively blacklisted her, by wrongly stating that she had been dismissed from her previous job.
It was a similar story for Jennie Fecitt, who lost her job as a senior nurse at a walk-in centre in 2010, after raising concerns about a nurse who lied about his qualifications.
Ms Fecitt went on to win an unfair dismissal case against NHS Manchester. But she later discovered that her employment record continued to show her reason for leaving as “dismissal”.
The plight of the two women is similar to that of dozens of NHS whistleblowers. Despite being cleared by employment tribunals, or receiving formal apologies for their treatment, their staff records continue to state that they were “dismissed” from their previous job.
The DoH has been accused of flouting data protection and employment legislation by refusing to update incorrect records – which are available to all prospective NHS employers.
The treatment of Ms Fecitt, Lady Yassaie and other NHS whistleblowers is “tantamount to blacklisting”, lawyers have warned, as potential employers are unlikely to hire anyone who has been dismissed previously.
“If there are disciplinary issues or dismissal, then it suggests there is a risk for that candidate,” a former NHS human resources director said. In most cases, she added, “you would go for another candidate”.
A deputy High Court judge called for changes to give whistleblowers specific protection against blacklisting, describing it as a “real gap in the law”.
A group of four whistleblowers, all of whom have obtained their staff records through subject access requests, are in talks with lawyers over possible legal action.
Ms Fecitt, who is now director of the whistleblowing organisation Patients First, said many of her 200 members had also reported problems with their staff records, and that trying to get the details changed was “like wading through treacle”.
Lady Yassaie said: “I was a highly experienced, highly paid manager. I had a fantastic career in the NHS. Now they are simply destroying my future. I feel so let down, so devastated.”
Jahad Rahman, a partner at Rahman Lowe Solicitors and employment law ‘I had a fantastic career in the NHS. Now they are destroying my future. I feel so let down, so devastated’ specialist, said that employers do not have to give references, but if they do, they are required to give accurate statements.
“If the record is inaccurate, that is potentially a breach of employment law,” he said.
Mr Rahman added that the DoH’s refusal to change staff records is “probably deliberate”, saying: “I don’t think it is an administrative error; that would be absurd in my opinion.” He said that numerous records that incorrectly state “dismissal” for whistleblowers “indicates that there is an internal policy, whether written or not, to disadvantage those that complain about wrongdoing within the NHS”.
Neil Churchill, NHS England director for improving patient experience, said: “If someone has won an employment tribunal case then that should be corrected [on their records] without us having to intervene.”
Earlier this year, the NHS published its first standardised national whistleblowing policy, following Sir Robert Francis’s Freedom To Speak Up review.
Sir Robert warned of a culture of “fear, bullying and ostracisation” within the NHS that punished doctors and nurses who exposed failings.
However, experts have argued that the new policy did not go far enough.
John Bowers QC, a deputy High Court judge and principal of Brasenose College, Oxford, said that a lack of protection against blacklisting remained a “real gap in the law”. “It is particularly serious in the NHS for two reasons. Firstly, because there are more whistleblowers than anywhere else, due to the nature of what people deal with. Secondly, although there are lots of different employers, it is effectively one large super employer,” he said.
The Information Commissioner’s Office suggested that the DoH was falling foul of the Data Protection Act. “If someone was dismissed then that would be included, but if it is established that they were dismissed unfairly, a note should then be added,” a spokesman said.
The DoH insisted that all its staff records are accurate, and that it was acting in line with data protection laws.
It said every NHS organisation has a “Freedom To Speak up Guardian” and that ministers are in the process of strengthening laws to protect whistleblowers.
“We want to make the NHS the safest health care system in the world and will support staff to speak up when things go wrong, without fear of reprisal,” a spokesman said. “[We’re] working with individuals to ensure that their electronic staff records are accurate and up to date.”