1 Summary
This case demonstrates how the appointment of a head of department without the personal skills needed for his new role created a bully. The management of the problems caused by this manager was then compromised by the conflict of interests that his managers and the human resources department (HR) had. Any criticism of him was seen as a criticism of their decision to promote him by three bands despite advice to the contrary.
The difficulties the Trust had recruiting a head of a department with the appropriate clinical, academic and management skills resulted in an appointee who did not have sufficient emotional intelligence for the role. He also lacked sufficient clinical experience. His insecurity quickly manifested itself as bullying as he did not know how to respond appropriately when his clinical or management opinions were challenged.
The manager’s inappropriate behaviour culminated in a member of staff considering suicide and ultimately leaving the Trust to avoid working under the manager.
The manager had failed to achieve a single step promotion at his previous Trust a few months previously. One of the interview panel made it clear publicly they did not agree with his appointment. The appointee’s former line manager was not offered as a referee but was sufficiently worried about the candidate’s suitability that he contacted the Trust with his concerns about the appointment.
His large promotion coupled with the public opposition by managers left both HR and his new manager, who championed his appointment due to his academic credentials, open to accusations of a conflict of interest when handling complaints against him. Both were perceived to be defending their decision to support his appointment. A large number of informal complaints to the bully’s manager were neither investigated nor recorded.
The conflict of interest for HR continued throughout an internal investigation into their management of him and then into the response to a letter of claim for negligence claiming the Trust had failed to protect the member of staff from the bully. The Trust’s attempts to respond to the issues raised in the case whilst avoiding any responsibility for the creation of the bully led to it abandoning its core values of integrity, compassion and respect.
This anonymised case study has been created to try to ensure that the lessons from this case are learnt by all NHS Trusts and organisations.
2 Introduction
Prevention is better than cure. This applies to bullying by managers in the NHS as much as it applies to the aliments of the patients in their care. The best way to deal with bullying is to prevent it occurring in the first place. Bullying by a manager can be particular damaging as they hold a position of power over their victims.
In some specialities within the NHS there is a lack of candidates for senior management roles with sufficient academic, clinical and management experience. When compromises are made clinical and academic skills are often deemed to be more important than management experience. This can result in the appointment of a senior manager with little management experience.
Whilst the NHS would not assume all staff can learn clinical skills ‘on the job’ there is an assumption that anyone with clinical or academic skills can learn management skills. There is no recognition that not everyone has the emotional intelligence to learn how to manage but it is recognised that not everyone has the academic intelligence to learn clinical or technical skills.
3 Background
The head of a technical department within Trust A had left suddenly after more than 20 years in post. The head of department role was covered in the interim by the two most senior members of the department. After 18 months an external candidate (AB) and an internal candidate (CD) were appointed as joint heads of department. The both reported to KL. Within the department were three sections; two of which were managed by section heads. The third was managed directly by AB and CD.
A number of informal complains were made about AB’s behaviour as a manager to CD and the section heads who passed them on to AB’s manager KL. As a result CD was given more of the personnel manager role which has originally be shared equally between AB and CD. After a year CD resigned and the clinical role was returned to the interim heads from a year earlier. The personnel management role was officially to be transferred to AB’s manager (KL) but was actually performed by AB as KL’s office was some distance from the department and KL worked part time.
The problems in the department continued and a year after CD left a new head of department was appointed above AB. AB’s behaviour continued to cause problems for some staff. A member of staff (GH) wrote to the Trust’s CEO after she left the Trust to raise her concerns about AB’s appointment and the management of his behaviour. This led to an eleven month internal investigation.
4 Appointment process
Due to a national shortage of suitable candidates after 18 months a replacement head of the technical department had not been recruited. When no candidate could not be found with both the academic and clinical qualifications required two joint heads of department were appointed. One had the required clinical and personnel management experience (CD), the other the required academic experience (AB). The personnel management role was originally split evenly between the AB and CD but after informal complaints about AB’s behaviour CD took much of the personnel management role.
AB was Band 7 at Trust B when he applied for the Band 8C head of department position at Trust A. Months before his application AB had been turned down for a Band 8A role at Trust B. AB’s line manager at Trust B was not offered as a referee but when told of his appointment to a Band 8C he contacted Trust A to express his concerns about AB’s suitability for the role.
The appointment panel consisted of two directors (KL and UV) from Trust A and an external member. One of the directors from the appointment panel (UV) made it clear to staff within the department that they felt the applicant who had been one of the interim heads of department should have been appointed instead of AB.
In common with many specialities within the NHS members of staff had frequently moved between Trusts A and B so AB’s background and previous role was known by some staff in his new department. As a result AB’s lack of clinical and management experience was known unofficially by some staff but was not acknowledged by KL until the joint head CD left after a year.
5 Management of complaints
The initial complaints about AB’s behaviour were made informally to CD and a manager of one of the three sections within the department (MN). They both passed the complaints to AB’s manager (KL) who had championed his appointment. KL did not speak to the complainants or keep any record of the complaints. The internal investigation did not establish whether KL discussed the complaints with human resources (HR) but one of the senior members of HR (ST) advising the internal investigation told the investigation that she frequently had coffee with KL during this time. After a large number of complaints in short period KL sent a message back to staff via their managers (CD and MN) that they should stand up to AB and stop complaining.
A formal complaint about AB’s behaviour as an interviewer was made directly to HR by a member of the department. This was resolved informally. Another member of the department (OP) resigned and asked HR for an exit interview with the Trust’s CEO. This request was declined and HR arranged for KL to conduct OP’s exit interview. After the interview OP handed a letter to a senior business partner (QR) in HR dealing their concerns about AB’s behaviour and KL’s management of AB. QR responded to this letter by asking KL to arrange for an exit interview despite the fact that KL had already completed the previous exit interview arranged by HR. 5.1 Examples of AB’s behaviour that caused concern Listed below are some of the incidents that lead to informal complaints:
1. When asked for careers advice by a trainee AB suggested that he should go pray.
2. When asked to perform basic clinical tasks he was not qualified to do AB would say he did not have time to worry about such trivial things.
3. At a whole department meeting AB told all of the staff about one member of staff’s medical issues that he had been told about in confidence as head of department.
4. AB embarrassed experience technical staff by telling them to leave meetings when more academic subjects were to be discussed.
5. When subordinates said they could not do academic tasks AB wanted done immediately due to time critical clinical commitments AB would remind them that he paid their wages.
6. A subordinate who said a computer system at to be tested at full load and not after the working day was told publicly by AB he was just making excuses because they were lazy.
7. When AB’s inappropriate clinical suggestions were not used by a subordinate with more clinical experience than AB, AB told them would affect their career.
8. When funding was only available for one person to attend a conference AB took a subordinate along knowing only a single place had been paid for. On arrival AB told the subordinate that they could not register but could attend and help themselves to food as there was always lots spare. The subordinate considered this to be stealing and refrained.
9. As an interviewer AB shone a light at an applicant who was known to him and pretended it was an interrogation.
10. At a meeting with trainees and one of the acting clinical heads of department AB publicly humiliated the acting head about their management of a project.
11. AB physically dominated subordinates by forcing some of them (both male and female) to hug him, pushed them out of the way on a number of occasions and perched so close to staff when they were sitting at their desks he would sit on their computer mice.
12. AB dominated all meetings with subordinates by providing his opinion on all topics regardless of his experience and asserting it must be correct as he was a Band 8C.
13. AB told a subordinate to use their log on to a medical records system he did not have access to so he could look at a colleagues medical records.
5.2 Staff response to AB’s behaviour
Staff modified their behaviour in response to AB’s management style. They stopped contributing to meetings he was present at and excluded him from other meetings. After KL’s message to staff that they should stop complaining and stand up to AB some staff became more confrontational and, for example, refused to stop clinical work when AB told them his academic work was more important. Staff also started to use a derogatory nickname to refer to AB when he was not with them. One member of staff told the internal investigation that the atmosphere in the department at this time was horrid. Three member of staff resigned from the Trust as a result of AB’s behaviour.
5.3 Incident that lead to a formal complaint
A member of staff (EF) in AB’s department died two weeks after leaving the Trust while one of their colleagues (GH) was on sick leave. AB emailed GH the morning after EF’s funeral to tell GH that as EF’s desk was ‘available’ he had allowed two visiting students to use EF’s desk. He did so without removing any of EF’s personal belongings. AB’s manager had changed a fortnight before EF’s death so no one took responsibility for EF’s belongings or for supporting GH on their return to work following EF’s funeral.
When GH returned to work she was concerned EF’s belongings had not been treated with appropriate respect by AB. GH took on the task of taking care of EF’s belongings but was unable to cope, she spent much of her time at work in the following six weeks distressed and alone in the office she had shared with EF. This was unnoticed until GH asked EF’s new manager (IJ) for permission to take unpaid leave. This request was refused. GH broke down during a meeting with IJ to discuss alternatives and returned to EF’s office to take an overdose. IJ recognised there was a serious problem and ensured GH was not left alone and arranged for GH to take three weeks leave.
On GH’s return to work she was fully supported by IJ and others in the department. Care was taken to ensure GH did not work with AB. A new head of department was appointed at Band 8D and AB returned to the mainly academic role for which he had been recruited. After 9 months GH and AB’s work areas started to coincide. GH accepted IJ’s offer of informal mediation with AB but this failed. GH failed to cope with working with AB, her mental health deteriorated again and she resigned.
GH wrote to the Trust’s CEO and HR director about AB’s appointment and the management of his behaviour. HR were asked to treat GH’s concerns as a grievance and arranged a formal investigation.
5.4 Investigation
The eleven month investigation was overseen by two HR business partners (QR and ST). Both QR and ST had a potential conflict of interest. ST had been responsible for advising AB’s manager during AB’s appointment and during the period when the initial complaints about AB’s behaviour were made. QR had dealt with the complaint about AB’s behaviour as an interviewer and a letter about AB from a member of staff who had resigned (OP) as a result of Ab’s treatment of him. When GH asked the investigation chairman to make it clear that the investigation could consider QR’s response to OP’s letter despite her presence at the meeting QR stepped down from the investigation and was replaced ST. ST‘s role in advising KL was not made clear until the last meeting of the investigation. While the investigation was still ongoing AB was allowed to appear on local radio to discuss the work GH did while she was at the Trust and claim it as his own.
The investigation concluded that although there were concerns about AB’s behaviour it was the result of cultural differences and the hostility he met when he joined the department. The only members of staff who had admitted they were bullied by AB and had then left were GH and OP. The humiliation, embarrassment and hurt described during the investigation by AB’s subordinates was not considered to be bullying because the Trust’s processes do not allow behaviour to be labelled as bullying unless staff admit they have allowed themselves to be bullied.
The only comment in the final report of the investigation about the management of AB was that GH had raised concerns about KL’s management of AB.
6 Letter of claim
The influence on the investigation of the HR business partners who were defending their own roles in the management of AB meant the investigation was not independent. To obtain an independent review of what had happened GH sent a letter of claim for personal injury to the Trust A. Trust A referred the letter of claim to the NHSLA (later NHSR). A solicitor (A) was appointed by the NHSLA who was assisted by a second solicitor (B). After two months solicitor A left the case and the lead was taken by solicitor B. Solicitor C at a different company to solicitors A and B was appointed directly by the Trust to represent their interests.
6.1 Disclosure of evidence
The NHSLA and Trust did not respond to GH’s repeated requests for the disclosure of evidence requested in the letter of claim. At a Pre Action Disclosure hearing GH was granted access to some of the evidence she had requested. The judge described the NHSLA and Trust’s behaviour in failing to respond to GH’s requests for disclosure as indefensible.
6.2 Response to letter of claim
The Pre Action Protocol for personal injury claims requires the respondent to response to a letter of claim within four months and secure all evidence requested. Fourteen months after the letter of claim was received an internal review by NHSR into their management of the case resulted in a letter of response being sent by solicitor B.
The letter made it clear that the Trust did not consider that any of AB’s behaviour described in section 5.1 was bullying but was due to cultural differences. The letter did not explain whether the trust’s policy on which cultural differences that make the behaviour acceptable are based on race, nationality or just different life experiences such as class.
The letter of response also stated that none of AB’s emails to GH were inappropriate. AB’s email referring to a colleague’s desk as ‘available’ the morning after her funeral was not excluded from this statement. No reference was made how the Trust’s core values apply in this situation.
6.3 FOIA Requests
The letter of claim contained a number of FOIA requests and subject access requests. The FOIA states that the Trust should respond to a FOIA request within 20 working days. The FOIA requests within the letter of claim were highlighted in a number of emails from GH and the Information Commissioner (ICO) to the Trust over a two month period. The Trust’s first response to the FOIA requests in the letter of claim came after a Decision Notice from the ICO 89 working days after the letter of claim containing the requests.
The delay in responding to the FOIA requests lead to particular problems with one of items requested. The Trust’s first response was that the information could not be located as the author had left in the interval between the information being requested and the decision notice from the ICO ordering the Trust to respond. GH asked the Trust to review this decision and the Trust located some of the information but said it could not be disclosed as it identified individuals. GH was one of the individuals identified so requested disclosure under the Data Protection act. The Trust’s response was that GH could not be identified in the documents. GH obtained access to the disputed information at a Pre Action Disclosure hearing and felt she could be identified. GH asked the ICO to review the Trust’s decision not to disclose it under the FOIA in the public interest but the ICO upheld the Trust’s decision.
GH appealed against the ICO’s decision to a FOIA Tribunal and asked them to consider whether the Trust had deliberately delayed their search for the documents for four months in order to avoid disclosure. The ICO were not represented at the Tribunal. The Trust was represented by a London barrister and a solicitor who specialised in the FOIA. Solicitor C attended as a witness. The Tribunal upheld the Trust’s decision and stated they could not rule on the whether the Trust had delayed their search to avoid disclosure. GH referred the delay back to the ICO who ruled GH’s complaint was out of time.
6.4 Subject access requests
Some of the information requested in the letter of claim was in GH’s personnel file. Solicitor C’s assistant sent GH a form authorising disclosure under the data protection act (DPA) which required disclosure within six weeks. The form stated solicitor C would send a copy of the file to GH and the NHSLA. After 11 weeks and two reminders GH asked the ICO to remind the Trust of their obligations under the DPA which they did. 13 weeks after the original request the Trust sent a copy of GH’s occupational health file to Solicitor C who put it onto a disc and sent it to solicitor B. A month later solicitor B sent the CD to GH claiming it was GH’s personnel file.
GH complained to Solicitor C that the file should have been sent directly to her. Solicitor C explained to GH that her letter of claim meant that Solicitor B was responsible for sending the file to GH. In Solicitor C’s evidence about the delays to the FOIA Tribunal (section 6.3) she stated that the disc she had created had been created by the Trust and sent directly from her to Solicitor B so she was unaware of the contents. Her company stamp on the documents on the CD contradicted this statement.
GH’s personnel file was released directly to her by Solicitor C 17 weeks after it was initially requested.
7 NHSR (was NHSLA) Intervention
Ten months after her letter of claim GH sent a FOIA to the NHSR asking for the data to back up the claim on their website that all letters of claim receive a letter of response. After reviewing their FOIA refusal notice NHSR provided GH with a response for claims under £100,000. When GH continued to press for the information about claims over £100,000 NHSR asked GH why she was making the requests and offered to review what had happened in her case. GH accepted this offer.
The review took two months to complete. As a result of the investigation Solicitor B sent a letter of response to GH.
8 Consequences for the Trust
8.1 Financial
This case has cost the Trust and NHSR approximately £100,000.
8.2 Breach of core values
In the course of this case there have been a number of actions and statements that conflict with the Trust’s core values of compassion, integrity and respect. These include:
1. A conclusion of the internal investigation that implies that all of the behaviour described in Section 5.1 is acceptable if the bully has been provoked by someone else.
2. A statement in the letter of response that implies that the behaviour described above is excusable if it is due to cultural differences.
3. A statement in the internal investigation that employees should report suicidal thoughts formally and immediately if are likely to want the Trust to investigate the cause.
4. A statement in the letter of response that implies that there is nothing inappropriate about an email the day after a recently retired employee’s funeral referring to their desk as ‘available’ before their belongings have been removed.
5. The Trust allowed a solicitor acting for them to lie in a sworn statement to a Tribunal to blame the NHSR’s solicitor for the delays in responding to a subject access request.
6. The Trust allowed members of HR to investigate their own actions
7. The Trust failed to respond to requests for disclosure of information in accordance with the pre action protocol. Their behaviour was described by a judge as ‘indefensible’.
None of these actions reflected the Trust’s values but are the consequence of the failure to manage a bully and the subsequent complaints appropriately.
8.3 Current Situation
The Trust still has a senior manager whose job description does not reflects his mainly academic role. He still is unable to perform the management or clinical roles described in his job description. His ongoing role in the department continues to cause stress to other. The Trust’s policies on confidentiality means that the Trust’s partner organisation where he also spends some of his time working with young adults are unaware of any of the Trust’s concerns about his behaviour.
Several valuable of staff have resigned from a vital highly expert department.
GH is still receiving medical support to help her to recover from her time working for the NHS.
9 Questions / Summary
1. Could this happen again within your organisation?
2. Are HR and other staff appointing managers within your organisation aware of the potential for the creation of bullies in this way?
3. Are inexperienced managers within your organisation given sufficient support and appropriately monitored?
4. Is there a process in place within your organisation that recognises when a large number of informal complaints are being made about one individual?
5. Do your organisation’s processes ensure concerns about bullying by a manager can be investigated by people who are independent of a manager’s appointment?
6. Should the NHS consider the use of probationary periods for managers as is common in industry?
7. This Trust should have acted differently if they had applied their core values to all situations in this case. Are your organisation’s core values applied in all situations?
8. Is it common practice for solicitors employed by your Trust to delay the provision of information to prevent full disclosure and fabricate evidence when asked to explain the delays?
9. In interview situations are your interviewees allowed to select referees pruning out those recent colleagues who might not depict them in the most advantageous light
anti-bullying NHS 