May 28, 2013

NHS Trusts – Employment Tribunals - the use of delaying tactics to prevent fair and equitable settlement.

The change in the law, allowing costs to be awarded at Employment Tribunals, has reduced the number of applications because litigants are fearful of being ordered to pay costs if they lose. 

Sadly, it is often the case that NHS staff, who are deemed to be “difficult,” are dismissed to relieve the Trust of an employee, who has the temerity to challenge management – this is often the case with whistle blowers or those who register a formal grievance.  HR managers know a successful appeal to an Employment Tribunal will be the inevitable consequence but will make a calculated decision, “Will the member of staff have the resources to pursue a successful application to an Employment Tribunal?”

A vast majority of cases brought against the NHS are successful and many are settled on the morning of the eventual Tribunal hearing.  On average it takes at least eighteen months (often longer) for the matter to appear before the Tribunal.

On at least a weekly basis, we heard from former NHS staff, who have been dismissed and have a case pending before a Tribunal.  In each and every case, the NHS Trust involved, purposely took a circuitous route to spin out the time it took for the case to reach a hearing.  It is a policy based on the Trusts’ ability to raid the public coffers, incur enormous costs and spend unlimited funds on legal fees, whilst the applicant struggles to live, let alone pay his/her legal fees.

The policy works like this; if a member of staff is dismissed, he or she cannot get a reference and has difficulty in obtaining immediate employment (this is particularly the case for medical staff).  The Trust involved, will engage a firm of solicitors, who specialise in employment law (usually charging the most enormous fees imaginable) and will then sit back and play a waiting game, all the time spending vast amounts of “public money,” which could be allocated to patient care.

Meanwhile, the former employee racks up horrendous legal fees and eventually reaches a point, where continued litigation is no longer an option.  Even though they have a strong case, economic reality ensures the case is withdrawn.  Even if the applicant stays the course, there is very little guarantee he/she will recover anywhere near his/her full legal costs.

In those cases, where the applicant manages to reach a hearing, the case is often settled at the last minute and more often than not is the subject of a compromise agreement (a “gagging order,” which prevents the applicant speaking out after settlement).  In each and every case, lost wages are awarded, together with a sum for losses, injury or illness brought about by the dismissal.

We are in the process of submitting a number of FOI (Freedom of Information Act 2000) applications to various Trusts.  It is to our certain knowledge,  in “settled” cases (and always in contested cases) legal costs are far, far higher than the settlement figure paid to the applicant.  Those costs could have been allocated to patient care!

If you have been subjected to an employment tribunal involving the NHS, we would like to hear from you (even if you have been subjected to a compromise agreement – a “gagging order”).  If you can provide details of the “dark arts” used by HR departments, within the NHS, please contact us – these iniquitous practices cost the public purse millions and have to stop.


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