Cultural issues related to allegations of bullying and harassment in NHS Highland: independent review report

25. Human Resources Procedures, Policies, Processes and Related Issues

Introduction

25.1. The number of specific issues which were raised with the review covering what I would describe as "process" is enormous. I can only provide a summary here and expect that, as part of a new approach, matters like these will be taken up by others.

25.2. From what I have been told, there has been and continues to be serious delay in addressing many of the issues of significant concern to members of staff in NHSH. This is often because of failures and delays in recording, reporting and investigating and in grievance and other procedures and policies for dealing with complaints and other concerns (including the inconsistent and inappropriate use of suspension and capability assessments, breaches of confidentiality and loss of impartiality). I have heard that this leads to polarisation, tension, stress, unhappiness, sickness and other detriment in individual departments. A key feature is said to be the lack of a willingness to follow process and properly investigate.

25.3. One respondent summarised matters in this way:

"I feel there was/is no confidence in the processes we have for dealing with issues such as bullying and harassment (nor the qualified people or appropriate training) and it will be an important part of your review to examine these and hopefully recommend improvements."

25.4. While there is a lot of criticism of "HR", that may be a catch-all which conflates management roles and the HR function and does not fully acknowledge the wide-ranging nature of the dysfunction across management generally. I acknowledge that the HR team's morale has been affected by the allegations made and that there may be misunderstandings about the limits of the HR role. They tell me that they have also themselves been the subject of inappropriate behaviour on occasions.

25.5. I was impressed by the openness and candour of those I met from HR. In reality, it seems that Human Resources (and Occupational Health) have not, for a number of reasons, been able to cope with the enormity of the situation.

Resources

25.6. I note that there is a widely held (but not universal) view that resources within HR are not adequate ("we end up firefighting"), not least in the employment of a part time HR director. It is fairly clear that such a role is not sufficient, as the present part-time Director of HR acknowledges. The view was also expressed that if HR could focus on preventative strategies, rather than simply handling a barrage of case work, they could be more proactive.

25.7. This view sums up what I heard from a number of respondents:

"…while I had good HR support for some aspects of the work, I do not think NHS Highland has anything like enough HR staff to provide the support needed to work through some of the very tortuous HR policies. This means that situations that can both cause and contribute to stress within departments are not dealt with in a timely manner. I'm thinking mainly of capability and attendance issues which can go on for several years without any resolution. This increases pressures on other members of staff."

25.8. One respondent described the overarching issues as seen by that person:

• "Inexperienced HR personnel/advisors
• Poor advice from HR
• Lack of consistency
• Not following guidance/PIN Policies etc.
• Lack of moral/ethical compass
• Difficult/complex issues filed on 'too hard' shelf"

25.9. It was suggested that HR difficulties may, in part, be a throwback to the inclusion of a large number of council employees (approximately 1500) when care services were transferred, especially as there were significant cultural differences between the two organisations. It seems unlikely that adequate HR resources were planned for at that time.

25.10. Much of this chapter takes the form of narratives of what I was told, which I feel speak for themselves. In a sense, it is the overall picture which emerges which merits consideration, demonstrating as it does extensive dissatisfaction with processes in NHSH. I recall the remarks about NHSH made by a full time union official, recorded at paragraph 16.42 above.

Lack of Implementation

25.11. It is said that policies are not implemented or interpreted consistently by managers, with serious results:

"Furthermore, when my case was addressed by Senior Management the resultant actions, were not consistent with NHS Highland policies and were not based on any proper investigation of the case. NHS Highland has used policies, practices and threats to marginalise, isolate and bully in an attempt to pressure me into accepting a career ending change. My reputation and indeed personal confidence have been damaged as a result. The impact of the above has been traumatic adversely affecting my Health and Welfare with consequential impacts on my family generally."

25.12. There is general concern about the application of policies and standards as these contributions show:

"Throughout my experience in the last 3 years I have directly experienced breaches in the staff governance standard, breaches in NHS Highland policies, breaches in Health and Safety legislation and breaches in guidelines from ACAS in carrying out investigations. As evidenced by lack of adherence to policies, procedures and law it is clear that staff are unsupported, poorly trained, ill-informed and are effectively "making it up as they go along"."

"The NHS Highland Policy "Preventing & Dealing with Bullying & Harassment" states that "It is crucial that organisations treat seriously any form of intimidating behaviour". From my own experience, my perception is that NHS Highland does not take such allegations seriously preferring to sweep the issue under the carpet which in my view is questionable in terms of the Law, it certainly goes against Policy.

The "Dealing with Employee Grievances" policy clearly states that "employees are encouraged to raise grievances without fear of penalty or victimisation, and that NHS Highland has a clear commitment to operate in an open, consistent and fair manner with the aim of creating a no-blame culture". Unfortunately, I believe I am being penalised. I have received no feedback from discussions that were supposed to take place between the Chief Officer & my line manager about her behaviour which leads me to believe my grievance is not being taken seriously, leave it long enough & it might go away."

Other Specific Concerns

25.13. Specific concerns about the HR function were expressed by many respondents:

"…after many weeks I was informed that [Senior HR] would be carrying out the review instead. After more delays [her] review came back not upheld and the recommendation of alternative employment for me was still the only conclusion and recommendation. I cannot get my head around why there were so many reviews carried out when the reviewers had no intention of investigating my case properly. Were they told not to? .... [she] advised in her report that she would be assisting me going forward in my redeployment and that she would arrange a meeting with another member of management. However I never did hear from [her] ever again and no such meeting was ever arranged." I resigned from my post.., as it was clear that management were not going to fix or attempt to do anything to help my situation. I had been left with no job, thus no wages; my career has been destroyed by the negligence of NHS Highland Management. Someone has to be answerable to the destruction of my life."

"A couple of years ago a Give Respect/Get Respect meeting held locally after a questionnaires being completed and returned by staff. This meeting was attended by an HR representative… and members of staff. Many members of staff spoke up about instances that had happened to them at…, the way they were treated or spoken to. This took a lot of courage for these woman to speak up, they decided to raise their issues as it seemed that NHS wanted to make changes and improve relationships with staff. Consequently nothing has happened regarding issues raised, it has been swept under the carpet and some issues regarding …management passed off as relating to another member of staff no longer at ..."

"Overall she has lost faith in HR and management - feels they are underhand, all stick together and watch each other's backs, feels blocked at every turn, feels she has been lied to on occasion - the official escalation route has not worked"

"Disciplinary hearings: NHS are prosecutor, judge, jury, executor – not impartial"

"Senior managers are not trained to handle complaints"

"NHSH does not have a robust or effective system for mediation and does not have enough experienced or unbiased staff to carry out investigations."

"Moreover, no member of Management or Personnel Department responded or held accountable for the handling of the process. [Senior HR] was not even challenged after he sent in error all the documents relating to my investigation to someone who had given evidence against me. The handling of my Investigation process was reviewed by a member of staff who was subordinate to the people involved. How would such a person be able to criticise his senior colleagues?"

25.14. The following remarks by another staff member capture many of the concerns about process:

• "NHSH did not adhere to and showed poor knowledge of their own policies.
• Chose to use policies which suited the organisation rather than the victim to the detriment of fair process and unnecessarily (possibly deliberately) elongated time scales to the detriment of processes and resulting in the victim being timed out of other options.
• They did not allow the victims witnesses to be called or interviewed unless they were current employees of NHSH – this seriously impacted on the victim`s case.
• NHSH did not apply reasonable care or common sense to look after the victim and ensure her safety in the work place.
• There was no named/confidential contact made available…
• The perpetrator effectively remained the manager of the victim and made decisions about her every day working etc. This allowed him to conduct a discrediting campaign, maximise her isolation and make her working environment intolerable.
• His manager was complicit with this and was at lengths to point out that the perpetrator`s rights were to be upheld and as a manager his work was more important than the victim`s.
• Grievances brought forward by the victim about this treatment were not progressed to completion.
• OH reports were not acted on and a crucial one was retained by HR and not shared with a new manager.
• The Perpetrator remains in the organisation, the victim has had to leave due to impossible working environment and the unwillingness of NHSH to put in place robust measures to protect her.
• The same manager and HR person were assigned to both the perpetrator and the victim. The manager was his immediate line manager who he worked closely with.
• NHSH used `the pay out offer` just before the Tribunal which as they knew triggered the funding from the victim`s union to be withdrawn thus effectively stopping the Tribunal and keeping knowledge of the assault out of public domain. This also stopped the opportunity for other victims to come forward.
• The internal investigation findings of `not proven` changed at ET1 response by NHSH to not guilty and supporting the perpetrator. This without any further information from the victim.
• The process from making complaint to NHSH, to the victim leaving the organisation, took 19 months.
• On leaving the organisation I sought to meet with [a very senior manager] to tell her of the problems with processes etc in the hope that the organisation could learn from my experience and no one else would have to go through the same experience as me.
• She did not acknowledge my several emails even though they were copied to her secretary.
• I was continually told by HR and managers that my case was unique, I cannot believe this is the case and feel it is more likely that others distrust the NHSH processes and therefore do not report incidents."

It is this general conclusion which reinforces so much of what I have heard from others. This needs to be addressed.

The Grievance Process

25.15. Many people have expressed frustration that their complaints are not dealt with adequately:

"The reason for adding my voice to my colleagues now is my dismay and frustration at NHS Highlands Bullying grievance process. Having plucked up the courage to go ahead, x was allowed to put in a counter-grievance against me, which incidentally was remarkably similar to the one x put in against one of my colleagues when x also raised a complaint. X's grievance was treated to equal billing with mine and the whole process seemed to be aimed at causing the least amount of headache for HR and NHS management as possible. The sole aim seemed to be to get the 2 of us to be able to work together - not to look into my allegations of long-term bullying as I had hoped."

25.16. That these are long standing issues is reflected in this commentary on "Lessons Learnt from NHS Highland Grievance Process" provided by an existing employee who experienced difficulties a few years ago:

• "The system for raising a grievance in theory should work, but it is flawed on every level. As I discovered even senior managers do not adhere to the process and timeframe, but the complainant is expected to.
• In its current format, it is biased in favour of management and personnel staff. Union representatives may well be acquainted with the various policies, but my experience showed them to be more inclined to keep in with managers and to belittle the nature of the grievance.
• My grievance while more than valid need never have reached a formal grievance process. There should be an independent reviewer to validate whether a grievance should progress or just an apology given.
• Persons independent of the area in which the grievance is raised should deal with it. They should have no prior knowledge or involvement with the staff involved. I.e. the Line Manager of the friend of the Manager being investigated should not be the Investigating Manager for obvious reasons of possible bias.
• Personnel and Managers should be fully cognisant of policies and their content in order to apply them effectively and in the right context. It should also be made clear on every policy that it applies to every NHS employee regardless of roles, so that managers and personnel are not exempt.
• The so-called 'No Blame Policy' is the only policy that managers adopt for and between themselves. It does not actually exist on paper. I was told to my face by a group of managers that they would never ask another manager to apologise for their actions or the way they manage. Instead the organisation (a faceless concept) could apologise on their behalf, if necessary.
• The personnel people involved in the debacle were never brought to account for their incompetence in the way things were handled. They were rude, unprofessional and extremely unhelpful. This gives the impression they are untouchable and separate from the workforce.
• The grievance process is made to be difficult for the person who has the temerity to be raising a grievance. Why else would [Senior HR] try to dissuade by telling you how stressful it will be. It should not be a stressful process especially for a complainant raising concerns about the stress being caused to them, and more especially so if it is an issue of bullying and harassment.
• The person raising the grievance or any concerns for that matter should not be made to feel like a villain or that they are in the wrong. It should be recognised that to reach a grievance stage, it is a last resort, a corner into which the complainant has been pushed.
• The grievance process as it stands only serves to heighten the perception of 'them and us. It shows that there is no parity between managers and staff, or between staff and personnel. It is a side-taking exercise that allows managers to take cover behind the lines of the spurious and dubious implementation of policies by personnel staff and to some extent even Union representatives.
• There should be a system in place, a framework with options that allows any member of staff, be it a cleaner or a manager, to raise concerns in several ways, before it might ultimately end up a grievance. It needs to be a neutral, fair process, with absolutely no possibility of bias. In some ways there is a case to be argued for this to be run by a department independent of the organisation.
• My experience showed that in an organisation that purports to be representative of the gamut of the caring professions, it became instead a coldly, defensive, uncompassionate machine that eventually, after everything I'd had to go through, proffered what can only be termed as an automated 'apology from the organisation' a truly faceless concept.
• Finally, having been through the grievance process as the complainant, not only did I have to singularly defend and speak for myself, despite providing masses of written 'evidence' beforehand and having gone to a Stage 2, before my grievance was finally upheld. I have absolutely no doubt that my personal file will have me marked as 'trouble' and that's the price you pay for 'raising concerns or whistleblowing'."

25.17. Other concerns were expressed about a seemingly disjointed and impartial process where interviews of witnesses and "perpetrators" took place before any formally submitted complaint or allegation, with a perceived lack of independence by those conducting the investigation and failure to take account of independent evidence and other clinical concerns.

Delay

25.18. Passage of time and lengthy delay came up repeatedly in my discussions and in written responses, as these examples illustrate:

"… that whole process takes far too long. The effect of this is two or three-fold. You, as the complainant, have to have a difficult working relationship with your manager while it's being investigated. Sometimes the delay means that one or both the complainant and respondent will go off on sick. Sometimes the investigation makes things more polarised. By the time the investigation concludes, it's too difficult to make it positive for either party, neither wants to work with each other. It's a corrosive process. It doesn't need to be systemic, you just need to multiply individual experiences to make a big problem."

"I would like to report that I put in a complaint regarding bullying and undermining behaviour regarding my clinical line manager in January of this year, and discussed the complaint with the service manager at that time. By late September when I had not heard anything further, I contacted members of the Board including the interim director of HR, board medical director and chair of the Board. Aside from an acknowledgement of my email from HR I heard nothing and after a further 5 weeks contacted the above individuals again in November. Again I received only an acknowledgement from HR. On both occasions the chair of the board has not responded at all. In frustration, I chose to write a separate email to the board medical director to express my distress and disillusionment at the situation. In response to this he advised me that on discussion with the director of HR it was acknowledged that my complaint had not been progressed, but at no point have I received any direct communication from HR to inform me of the status of my complaint. Since the external enquiry has been announced I have now received an invitation to an informal meeting with medical managers, but with no indication of process or progress. The behaviour I experienced was extremely distressing but the lack of any response over a 10 month period has left me completely disillusioned with my employer and considering leaving the specialty that I have trained in, in order to avoid further confrontation and distress."

"The processes took too long to happen - things dragged on for too long and by the time meetings were made between union/ employer and HR, details were forgotten and the energy to take it forward was lost. By the end, my union rep wanted me to take it further, but I had lost the will and just needed to get a salary again."

(For completeness, the Medical Director has advised that he took immediate action on receipt of the communication on both occasions.)

25.19. Another concern is a change in approach after much delay, as this contribution illustrates:

"A second meeting was then held on [date] where I was advised that NHS Highland had decided my formal grievance would now be dealt with by the alternative 'bullying and harassment policy'. My grievance had been accepted since [10 months ago] and dealt with under the Grievance Policy. My [union] rep and I have formally objected to the abrupt and unnecessary change and are highlighting this to you as a further example of attempting to delay and intimidate me during the grievance process."

25.20. It seems that there are a number of reasons for delays, not least the volume of case work and the impact of that, for example, on the availability of union representatives to handle these. Overall, however, for (at least) scores of people in NHSH, the lapse in time is unacceptable and deeply affects relationships for all concerned.

Perceptions of Lack of Confidentiality and Bias

25.21. As we have seen already, lack of confidentiality and perceptions of bias are a repeated concern. Respondents reported that staff do not wish to raise formal concerns because of the damaging effect this will have on them both personally and professionally.

25.22. I was told of an instance where:

"… cases are heard by managers who are line managed by the very people (senior managers) the grievances are about. This seems fundamentally flawed and open to bias and inappropriate influence. I had similar issues with Union representation who was also a Board member and again feel this created a conflict of interest and influenced how the process was managed."

Suspension, Capability and Redeployment

25.23. There is particular concern regarding the apparently peremptory, inappropriate and inconsistent use of suspension as a disciplinary tool without full explanation and with long waiting times for information. The use and excessive length of suspensions can result in these becoming punitive in nature.

"This investigation turned into an unjustifiably long process. I was suspended from work and banned from entering any NHS Highland premises and told not to contact any member of staff, even those who were my friends. This process lasted for 2 years. I understand this practice of long-term suspension was a regular occurrence and staff often left in the process. Not only is this a cruel and unfair process it is also a complete waste of valuable skills and tax payers money. During this time not only was I deskilling, I was isolated in a rural area with my health and wellbeing suffering greatly."

25.24. Similarly, concerns have been expressed about the (mis-) use of "capability" assessments – with no reasons given, long duration, and unsatisfactory outcomes.

"The whole process was treated more like punishment."

"On a professional level, to be told that I was to be assessed through the capability procedures was devastating to me. The so called support plan was insulting in the extreme and had very little substance."

25.25. I heard that Supported Improvement Plans should be used genuinely for improvement, not as "a device to get rid of people".

25.26. I am told that the use of redeployment often fails to address the real issue:

"Then you get people who are redeployed, they don't want it, but they are too scared to leave and lose the post."

25.27. I am told that redeployment is also used as a threat. More tellingly:

"I was subjected to bullying and harassment by my team leader and two of my other nurse colleagues. There was a series of incidents; I was harassed and intimated, sworn at, belittled on so many occasions. I was being set up to fail by my colleagues and team leader often…Management turned the whole situation around on me, as if I was the problem. I was encouraged not to raise a grievance but to follow the redeployment process and procedures. The reality of redeployment did not hit me at that time, as I was under so much stress and anxiety with everything that had been happening over the time. Management were not interested in trying to rectify the situation and they only made my extremely difficult situation even more horrendous."

25.28. On general governance issues there was a concern that management more often than not moved problems and people rather than addressing them. There is a concern that the alleged victim is often required to move, rather than the alleged bully. It is suggested that moving or suspending both the alleged bully and the alleged victim during investigation would be logical and fair and would put pressure on managers to get resolution within the time required by the regulations.

25.29. The use of temporary and short-term contracts is also viewed as intimidatory.

25.30. Concerns also related to the use of Partnership Information Netowrk (PIN) policies. It is said that "the NHS Scotland Pin Policy – Managing Employee Conduct – is not fit for purpose". I have heard claims that they can be misused as an intimidatory threat. I do not offer further views except to recommend that these are looked at afresh.

Diversity and Discrimination

25.31. I was told by a colleague that the picture painted is of a culture that is 30 years behind the times when it comes to diversity awareness. The view has been expressed that there is a strong need to improve this and bring the NHSH culture into line with attitudes and practice in the rest of the UK.

25.32. Cultural and discrimination issues arise:

"I'm left feeling victimised and discriminated by several NHS Raigmore staff for having a disability and doing my very best to remain in employment. I have never put anyone at risk as I know my own limitation and have friends that drive me home if required. The allegations are not a true reflection of my caring personality. NHS staff will pretend they care about you to obtain personal information then use it against you. It deeply upsets me that I have so many discrepancies and very sensitive information on my NHS personal file."

25.33. One member of staff expressed this to me:

"I'm left feeling victimised and discriminated by several NHS Raigmore staff for having a disability and doing my very best to remain in employment."

25.34. One member of the portering staff described graphically the discrimination and disdain he experienced because of his accent and origins. He advised me that he was told it would be easier just to leave his job.

25.35. I have also been made aware by some respondents of significant and, for those involved, distressing instances of homophobia and racial discrimination.

Failure to Join Up Events

25.36. There is concern that the implications of the reporting of a number of comparable events, themes and patterns are not identified.

"Not joining up the dots, lack of system to do so (eg number of similar cases, departures from one dept etc – why not analyse human resource loss like would do with physical resources eg scanners)"

25.37. As a former support manager told me:

"One of my final points would be that the department had double digit staff turnover every year that I was there - if my memory is correct one year it was approximately 25%. I strongly believe that any department that has a double digit staff turnover rate should be investigated and managerial responses of 'they decided they didn't like it', 'too much like hard work', etc should not be accepted at face value."

25.38. I heard about a situation where there were at least three other reported cases against an individual in the previous five years and "where no links have been made between these grievances, by HR or senior management, or if links are made there is no desire to do anything about it."

25.39. In another example, "I was told by an Occupational Health doctor that this manager's name was one he was familiar with when dealing with staff experiencing stress and depression; I asked why he hadn't raised this, he claimed he had "no role" in intervening in such matters."

25.40. I am advised that steps were taken at board level to monitor trends relating to sickness absence and suspensions.

Occupational Health

25.41. There are concerns about the ineffectiveness of Occupational Health in collating and reporting on matters to do with bullying. I am told that "Occupational health is drowning", often dealing with matters on the telephone when a proper interview would be required in order to assess the situation adequately, especially if mental health issues arise.

Loss of Earnings

25.42. I have been asked to note the continuing financial loss that some individuals have suffered and /or will suffer. For those staff who have been forced to leave or those who have had to retire early because, as one put it, "they really couldn't take any more", there is concern that they have lost or will lose out on pensions, wages, references and other benefits.

25.43. This is just one example of many given to me:

"One important point I wanted to make is the significant financial loss as a consequence of raising concerns regarding patient safety, and protocols/policy resulting in my ill health both mental and physical. The stress and anxiety and depression that led to a loss of earnings resulting in half pay, with the second episode of sickness pay being stopped after 4 months."

Datix

25.44. Concerns were expressed that the use of this online reporting system is not as effective as it should be. This is beyond the scope of my report but I recommend a review so that employees not only understand how it works but can use it confidently and be confident in its results, especially when reporting incidents about the behaviour of colleagues in confidence.

iMatter Survey

25.45. I am advised that the 'iMatter staff surveys' seem to have superseded other forms of survey or staff consultation. However, it is said that because they are conducted for teams there is a feeling that any comments made are then traceable. I was told that these surveys are now viewed by some as "I Don't Matter". Generally, there "have been various staff engagement exercises such as iMatters. These do not seem to pick up the feeling of many staff who I know have expressed concern with this management style. Nor do HR seem to tie these episodes together and take a closer look at the impact on staff. If they are aware, there is no reassurance to staff that things are being dealt with and that their wellbeing is being taken in to account."

The Need for a Different Approach

25.46. A member of staff with personal experience discussed the need to find a different way of doing things:

"…generally the evidence is very difficult to obtain, and often is between 2 individuals with no witnesses. Most often even if no evidence is found or the complaint is withdrawn (which is very unusual) the relationships have broken down so far that staff cannot work together again and this means at least one of the staff is redeployed into another area. Staff can feel punished for having spoken up, as the whole process is very difficult. On the other side of things, I can very much appreciate the need for evidence to be present before formal action can be taken against staff who are behaving inappropriately. My own view is that the policy should more adequately support staff to raise and deal with issues at the informal stage, to prevent issues escalating. Managers should be properly trained to enable 'difficult' conversations with staff and to challenge inappropriate behaviours (without fear of being told they are bullying the staff by setting standards)".

25.47. A senior staff member wrote to me in these terms:

"There needs to be better training for those dealing with grievance procedures, mediation and follow up when these processes are finished to ensure agreed changes are ongoing.

My hope is that processes in dealing with these issues are improved. There is better training for management who deal with these processes. The cases and picture gained through things like mediation are tied together and managers or other staff who do not behave professionally are given support to improve and the staff experiencing bullying are treated with respect and supported fully."

HR Views

I am extremely grateful to senior members of the HR team for spending time with me and for providing me with their analysis following our meeting. I repeat this in full in Appendix 3 for three reasons: (a) it provides a useful acknowledgement of many of the points made above; (b) it provides a sense of balance from those within NHSH who have a far better understanding of many of these issues than I do; and (c) it provides a number of forward-looking proposals which deserve to be fully supported.

Confidentiality

25.48. I have been asked to note that there are significant constraints on the ability of an organisation to identify patterns of alleged bullying owing to the NHS policy of maintaining confidentiality in regard to individual cases. This could contribute to lack of knowledge at board and other levels.