Ian Perkin

Ian Perkin's Employment Tribunal decision

An update from Sheila Porter-Williams, April 2004

The case of Ian Perkin, who was dismissed from his post as Finance Director of St George's Hospital NHS Trust after he revealed that returns to the Department of Health had been falsified, was covered in FtC's bulletin, The Whistle No. 21.

His Employment Tribunal decision was announced, after a long delay, on 28th January 2004. The Tribunal found that he had been unfairly dismissed and that he had made a protected disclosure under the Public Interest Disclosure Act. The Tribunal did not, however, award any compensation, accepting as valid the Trust's pretext for dismissal, that Ian Perkin had an unsatisfactory attitude and interacted badly with colleagues.

The decision not to award compensation seems perverse and we expect it to be corrected on appeal. See Ian Perkin's website (http://www.nhsexpose.co.uk/) for a full history and further developments, and for publication details of his forthcoming book.

Ian Perkin's experience is still far too common. A report on BBC News: http://news.bbc.co.uk/1/hi/health/3006009.stm, on 7th May 2003 showed that one in three NHS workers who had voiced concerns about bad practice in the service had faced reprisals.

UPDATE June 2005: Report into allegations by Ian Perkin about St George's Hospital Trust finds main allegation proven but blames the whistleblower.

This case has featured in Whistle 21 and 23.

Ian Perkin was suspended and later dismissed as Finance Director of St George's Hospital Trust on grounds of an inappropriate management style after drawing attention to irregularities, in particular to falsification of returns used by the Department of Health for performance management of hospitals. Subsequently an investigation was commissioned by David Sissling, the Chief Executive of Leicestershire, Northamptonshire and Rutland Strategic Health Authority, acting on behalf of the South West London Strategic Health Authority.

Baldly, two out of six allegations were proven. The report accepts Trust's line that the problems identified by the allegations were quickly resolved and stresses mitigating factors. It also blames Ian Perkin for part of the dysfunctional management relationships at the hospital.

The investigation focused on two questions:

- Were patients harmed or otherwise disadvantaged?

- Was the taxpayer disadvantaged?

The consequence of this focus was that the report plays down in significance inaccuracies of performance management figures while it emphasises the costs of investigating allegations which could not be proved from available evidence.

As often happens in inquiries into serious allegations, the detail of the report shows much more than the conclusions about serious matters needing to be put right. All four of the unproven allegations led to recommendations in the report.

The main allegations related to performance management returns. Figures for both waiting lists and cancelled operations were under-reported.

During 2000, as a result of the introduction of a new system for booking appointments, some patients were inadvertently omitted from waiting list statistics. Reported waiting times did not change significantly while the true numbers of patients with long waits for appointments were increasing. When this effect was evaluated and brought to the attention of senior management, the figures showed a performance significantly worse than target, caused by the diversion of resources from seeing patients to training junior doctors. After discussion with the Regional Office, the figures were returned on the old basis that was known to under-record waiting times while the under-recording was further investigated and an action plan was prepared to bring true waiting times within target. From the ambiguous evidence the report concludes that the deliberate under-recording only lasted one month.

The report finds that the allegation of conspiracy with the Regional Office to conceal the true figures was not proven. It also states that patients were not harmed or otherwise disadvantaged. While it is true that patients were not disadvantaged specifically by the deliberate under-recording while an action plan to shorten waiting times was being prepared, they were disadvantaged over the preceding months when waiting times were extending without the knowledge of senior managers.

In January 2005 the Court of Appeal ordered an appeal hearing against the decision that Ian Perkin was fairly dismissed. The hearing is due to be held in the High Court in July 2005.

30 Apr 2004

WHISTLEBLOWER LAW WEAKENED FURTHER

Geoffrey Porter-Williams

Ian Perkin has featured several times in The Whistle. He was Finance Director of St George's Healthcare NHS Trust and identified various pieces of wrongdoing including manipulation of waiting list statistics and improper accounting. The Employment Tribunal found that he was unfairly dismissed but awarded no compensation on the grounds that he caused an impossible relationship with his wrongdoing colleagues. The Court of Appeal heard his appeal on 28 July 2005 and delivered their judgment on 12 October 2005.

The Court of Appeal upheld the earlier decisions. Their key point appears to be that the Employment Tribunal's decision was a finding of fact that was not subject to review in the higher courts. For the full judgment see:

http://www.bailii.org/ew/cases/EWCA/Civ/2005/1174.html

The law protecting whistleblowers (Public Interest Disclosure Act 1998, PIDA) urgently needs to be strengthened to create a presumption that, if a whistleblowing employee is disadvantaged or dismissed, the whistleblowing is the reason for the disadvantage or dismissal and should lead to adequate redress, regardless of extraneous charges that the employer may claim (and suborn witnesses to confirm) are the real reason.

Freedom to Care has met numerous instances of employers contriving unconvincing unrelated charges to justify suspending or dismissing whistleblowing employees. Ian Perkin's case is important because there is now a precedent that, while an employee cannot by reason of the PIDA be fairly dismissed for whistleblowing, the employee can be fairly dismissed for a breakdown in relationships that is a direct consequence of the whistleblowing. The judgment (along with earlier judgments refusing reimbursement of costs for Andy Sutton and others) has made the protection of PIDA ineffective for anyone employed in the central management of an organisation.

The case also highlights the weak accountability of NHS bodies compared with other local public bodies. Local and police authorities include members, often elected as candidates from opposition parties, who are accountable to their constituents and who are not committed to support the management. These authorities also have other checks and balances, including statutory duties imposed on the chief financial officer and the monitoring officer to report to all members on various types of wrongdoing, supported by statutory protection against dismissal unless agreed by an independent person. The protection is incomplete, as is shown by the dismissal as chief internal auditor of Flintshire of Andy Sutton, who could only claim the inadequate protection of PIDA as his position was not covered by statutory protection, but it is better than in NHS bodies.

In NHS bodies, if the chair and chief executive collude in improper conduct, which happens all too often, there is no effective check. Statutory duties of probity apply exclusively to the chief executive. The chair and chief executive acting together can dismiss an executive director, even in connection with an incident in which they are directly involved. In theory non-executive directors are a check on the executive, but they are often unclear about their role, they are not accountable to any local constituents, and they jeopardise their well paid part time positions if they antagonise their colleagues.

09-12-2005

See Ian Perkin's own website http://www.nhsexpose.co.uk/.