MANAGING THE MANAGERS: What lessons can we learn from the Government’s drive on NHS managerial accountability?

The recent announcement by Health Secretary Wes Streeting, proposing stringent measures to overhaul NHS management, highlights a gear shift in how the Government expected healthcare performance will be scrutinised in England. NHS hospitals will soon be subject to league tables, measuring indicators like care delivery and financial performance, with the intention of making performance visible to the public. Managers of failing trusts may face dismissal if they are unable to drive improvements, and incentives will favour top performers who achieve marked successes.

While the drive for greater accountability, and presumably, performance, is admirable, the NHS, like any employer, must manage change in culture, approach and expectations within with due regard for the law.

The Employment Bill introduces additional obligations and complexities that may make addressing performance and dismissing under performers for the NHS, (and in many cases all employers) an even more daunting prospect.

Under the current law, employers must not discriminate based on “protected characteristics” under the Equality Act 2010 or, dismiss because an employee is a whistle blower. Employees with more than two years’ service also have general protection against unfair dismissal.

From an employment law perspective, several key aspects warrant attention for the changing looming on the horizon:

1. ?Enhanced protection against unfair dismissal: The Employment Bill introduces strengthened protections that will likely extend to public sector employees, including NHS managers. Dismissals must be clearly justified with evidence showing not only that an individual has failed to meet specific performance metrics but that the criteria and processes leading to these conclusions are fair and reasonable. League tables, while offering a snapshot of performance, may not always reflect an individual manager's contributions or challenges.
2. Transparency and accountability requirements: The Bill mandates greater transparency in disciplinary and dismissal procedures. For NHS employers, this means ensuring that performance reviews, evidence of "turnaround efforts," and evaluations are well-documented, objective, and supportable. External oversight may be required in contentious cases, particularly when senior managers contest the validity of assessments based on league table standings.
3. Implications of a New Pay Framework: NHS chief executives' compensation will be tied directly to performance metrics. Coupled with the Employment Bill's stance on fair and equitable treatment, NHS employers will need clear, justifiable benchmarks for performance-linked pay adjustments. Discrepancies in the application of these measures may result in claims of unfair treatment or discrimination, potentially triggering grievances or legal disputes.
4. The Role of "Turnaround Teams" and managerial autonomy: Introducing turnaround teams may add another layer of complexity to NHS management structures. The Employment Bill's emphasis on workers' rights, autonomy, and protection from abrupt changes in duties means that managers may need additional support and clear guidelines if external teams are to oversee or redirect their initiatives. Employers should seek to balance (and evidence that they have done so) intervention with respect for managers' professional discretion to avoid claims of constructive dismissal or breach of employment terms.
5. The rising importance of evidence in dismissal proceedings: The Employment Bill strengthens the requirement for a comprehensive, fair approach in all dismissal decisions. With potential accusations of discrimination or victimisation—particularly if performance frameworks are unevenly applied—NHS employers will need to ensure any decision to terminate a manager’s contract is robustly substantiated. In cases where "rotten apples" are identified, the onus will be on NHS leadership to demonstrate that such labels are backed by data and consistent with the due process laid out in employment law.

As the NHS faces increasing scrutiny, balancing the need for high-quality leadership with the requirements of employment law will be crucial. Managers must be given the right support, clarity of expectations, and fair recourse, especially in a system that inherently poses complex challenges. This reform offers an opportunity to foster genuine improvement in healthcare delivery, but only if handled with transparency, fairness, and an appreciation of the legal protections that govern workplace changes.

As we approach the implementation of these reforms, NHS employers and legal advisers alike will need to stay vigilant. The Employment Bill's changes underscore the importance of fair, transparent practices that respect both accountability and the legal rights of employees, and prompt consistent application of these ensuring that high standards do not come at the cost of procedural fairness. If that can be achieved employers, including the NHS, may be able to improve accountability and performance with a more driven high performance approach.

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