The Sound of Silence

This is Part 2 of a blog whose first part was entitled The Elephant in the Room https://tinyurl.com/y7lcnzk6 . It further considers the consequences of failing to consider the possibility of race discrimination in disciplinary cases.

If you are one of the 19% of NHS staff who is from a Black or Minority Ethnic background there is a wealth of evidence that you are likely to be less favourably treated than other staff https://tinyurl.com/ya6ybqu3. One aspect of that less favourable treatment is what happens within NHS disciplinary processes.

The recent independent report into the tragic death of award-winning nurse Amin Abdullah, who committed suicide by setting himself on fire after his dismissal, was a scathing analysis of his employer’s acts and omissions The independent investigation rightly concluded there was a grossly unfair disciplinary process, and that the Trust internal review of the case was a “whitewash”. https://tinyurl.com/y8yhsyz2

That independent report, however, fell short in two crucial respects. Firstly, its recommendations focus on what happens once a disciplinary process starts, rather than on putting in place steps to ensure unnecessary investigations and hearings do not take place in the first place. It is as if the entire NHS discussion about getting the balance right between blame and learning when alleged incidents take place had not happened https://tinyurl.com/yc9o8aos .

Secondly, as discussed in “The Elephant in the Room” there is no evidence that the report considered whether race discrimination might have been a factor in Amin’s treatment, despite considerable evidence suggesting that was something they ought to consider.

Verita are the best known, and one of the largest, providers of investigation expertise to NHS organisations. Their report was a publicly funded investigation, ordered by the Secretary of State, on a matter of considerable public interest, at considerable cost. It is publicly available and its brief was to “assist learning” both by the Trust and the NHS as a whole.

Given this silence I politely asked Verita to share publicly the steps they say they had taken to consider race and ethnicity.

The following week they responded. They wrote

"As always at Verita, we approached this investigation with an open mind. Our investigation included interviews with his partner and work colleagues and consideration of extensive documentation. From the start, we considered a wide range of issues including race and nationality. We pursued all the concerns that were raised during the investigation relating to these and other matters rigorously". (my emphasis). https://tinyurl.com/y7fe6njn

I asked again for the evidence that they had considered whether race had been considered in their investigation.

I received three different responses, at three different times, in the same afternoon of August 15 2018, in this order

• “we considered a wide range of issues including race and nationality”.
• “race was not raised as an issue by his partner or work colleagues through the investigation. Other factors were and once substantiated, shaped the final report”.
• “we certainly considered race. What our report contains is what we found, based on the evidence. Our investigation took 9 months and resulted in a 40,000 word report.” 

I asked again

“Keiran. Thank you. If that is the case, since your report is a public report, publicly funded, and you are responding to a low key factual blog, could you please share with me and others how you considered race in writing the report? That's all I'm asking.” https://twitter.com/rogerkline/status/1028725650654416902

Unfortunately, we are none the wiser. No one knows what steps (if any) the investigators took to “consider race and ethnicity.”

My original blog stated, in the absence of any evidence to the contrary, that “the possibility of race discrimination – overt, covert or unconscious – was ignored by the Trust internal report and by Verita”. Their apparent silence was despite the fact that the Trust Annual Workforce Equality and Diversity Report 2015-16 showed:

• it was 2.03 times more likely that BME staff (compared with White staff) would enter the formal disciplinary procedures in 2015-16 when Amin was dismissed and 2.12 times more likely in the following year 2016-17, when the report was actually being written.
• 21% of BME staff reported being subject to discrimination, four times the level of discrimination reported by White staff in the Trust and significantly higher than the national average for acute NHS trusts
• the proportion of BME staff stating they did not believe there was equal opportunities for career progression or promotion (36%) was three times higher than for White staff and also significantly higher than the national average for acute NHS trusts
• the proportion of BME staff experiencing bullying and harassment from staff and managers was higher than the national average for acute trusts (and higher than for White staff in the trust). The proportion of BME staff reporting such bullying was lower than for White staff in the trust and the sector average
• whilst the proportion of BME clinical staff at Band 6 (Amin’s grade) was 58%, that proportion dropped sharply as each grade increased so that by grade 8B just 19% of clinical staff were from BME backgrounds dropping to 9% at Band 8C and to nil (0%) at Band 8D.

Such data does not demonstrate that race discrimination was definitely an issue impacting on Amin Abdullah’s treatment. But it does suggest that any competent investigator would have considered that was a possibility.

In their original report Verita rightly criticise the Chair of the Hearing that dismissed Amin because he did not “reflect that the role of proving things in this context falls to the trust rather than to a nurse” (para 8.151).

This is absolutely correct. Similarly, when conducting an investigation into the causes of a dismissal, the role of identifying concerns in this context surely falls to the investigator rather than not investigating an issue because it wasn't raised by Amin’s colleagues and partner.

Why does any of this matter?

It matters for two reasons.

Firstly, this investigation was commissioned to enable learning to take place from Amin’s tragic death. https://tinyurl.com/ya6kcemn . If such a high profile and expensive investigation, carried out by an experienced (and highly paid) investigations team, is completely silent on the matter, what possible learning can take place?

Secondly, race discrimination is an issue which is both very important for the NHS and frequently met with defensiveness and denial even though we know that the treatment of BME staff impacts on patient care and safety. https://tinyurl.com/gucvbkr

If an investigation led by a judge specialising in human rights, who was chair of the Law Society Equality Committee, fails to show appropriate curiosity on this issue, why would anyone else? The lesson others might learn could be that when staff or patients (or the data) suggest race discrimination might be an issue, employers can ignore the issue using an approach tantamount to the “nothing to see here, move along please” variety.

A difficult but important discussion needs to happen

Race discrimination is not easy to discuss and is not easy to demonstrate. Managers often find it difficult to talk about it and become defensive, whilst those on the receiving end are reluctant to speak out for fear of the consequences.

Sir Robert Francis wrote of patient care and safety that“

There lurks within the system an institutional instinct which, under pressure, will prefer concealment, formulaic responses and avoidance of public criticism” Robert Francis. Report of the Mid Staffordshire NHS Foundation Trust Public Inquiry (2013). https://tinyurl.com/omsm882

The same can be said of how, historically, race discrimination has been treated in the NHS.

In the tiny minority of cases where race discrimination cases are pursued formally, their chances of success are very poor. Some years ago, race discrimination was described by a very senior judge, Lord Justice Mummery, as ‘the most difficult kind of case’ that the Tribunals have to decide. He said

‘The legal and evidential difficulties are increased by the emotional content of the cases. Feelings run high. The complainant alleges that he has been unfairly and unlawfully treated in an important respect affecting his employment, his livelihood, his integrity as a person. The person against whom an accusation of discrimination is made feels that his acts and decisions have been misunderstood, that he has been unfairly, even falsely, accused of serious wrongdoing”. (Qureshi v Victoria University Of Manchester & Anor [2001] ICR 863. https://tinyurl.com/y7z29p86

There is an extensive literature showing how (and why) discussion of race, or discussions between White and BME staff, can be fraught with difficulty notably when “protective hesitancy” impedes honest discussion. https://tinyurl.com/ybnzv4tn. Moreover, if “affinity bias” means being biased towards “people who make me comfortable” or “people who are like me,” then, surely, its opposite are “people who make me uncomfortable” and “are not like me.” And the risk then is that those responsible for disciplinary investigations and hearings go looking for evidence that confirms those biases rather than any evidence that might challenge them.

Investigators must demonstrate curiosity and go where the evidence leads them, on race as on anything else.

Not an isolated case?

In Amin Abdullah’s case the Trust knew, and Verita either knew or should have found out, that this was not the only case where race had been raised as a potential influence on management behaviours.

Verita either knew, or would have found out with the most elementary inquiry, that there was an external investigation in 2015 by Capsticks into complaints of race discrimination in the disciplinary process by 22 midwives. If I could obtain a copy of the confidential Capsticks report I’m sure they could.

There is also the more recent case of a senior BME scientist whose question, asking whether the Trust disciplinary hearing had considered whether his treatment might have been influenced by racism, was immediately shut down by the Hearing Chair even though the Trust’s own Equality Report for that year had flagged up that a wholly disproportionate number of grievances were raised by BME scientific and technical staff.

The Trust have a brand new HR director and a relatively new CEO. They have an opportunity to radically improve the treatment of BME staff within the trust. They have rightly begun by immediately putting in place one measure I suggested for all Trusts two years ago

• a new checkpoint involving a senior staff member unrelated to the case to assess whether or not to move on to formal proceedings  https://tinyurl.com/y7te6lhd

But what about the Verita investigators?

In their annual equality report the Trust repeatedly mention the disproportionate involvement of BME staff in disciplinary action. Across the NHS there has been growing human resources and staff interest in the issue arising from the introduction of the NHS Workforce Race Equality Standard.

There is no available evidence that the investigators, despite assurances to the contrary, paid any attention to the issue. The fact that “race was not raised as an issue by his (Amin’s) partner or work colleagues through the investigation” is simply not good enough. Indeed this carefully crafted statement does even not say whether they were actually asked whether they thought it might be.

Whether as a matter of good governance, good leadership, their duty of care or their presumed awareness of equality and diversity as experienced investigators, Verita’s team surely have been curious as to whether race discrimination in any way impacted on Trust decision making, especially when one of the investigators is chair of the Law Society Equality Committee whose own guidance certainly implies (or even mandates) such curiosity https://tinyurl.com/yb6wl6la  

The information to assist such curiosity was easily available. It is unclear why, as a minimum, they did not apparently ask for it.

On race, silence – whether from an employer or from staff - does not mean race is not an issue. For example, the 2015 confidential Capsticks report I referred to earlier rejects the allegations of bullying made by Trust BME midwives on the grounds they raised no formal bullying grievances. But an alternative analysis might have asked whether there was a very serious problem precisely because no formal concerns were raised, even though 36.23% of BME staff in the Trust that year said they had been bullied by managers or colleagues. Silence as avoidance.

Conclusion.

Faced with the evidence that race might be a factor, it is difficult to see why Verita did not investigate whether that might be the case.

Verita were absolutely right when they stated in their report that “the role of proving things in this context falls to the trust rather than to a nurse”. But equally, the onus was on the investigators, not on Amin’s colleagues and partner, to explore and determine whether race might be an issue.

Similarly, had Verita been familiar with the increasingly voluminous literature on blame, learning and disciplinary action in the NHS, they might reasonably have been expected to make recommendations that went beyond improving the processes once staff are in the disciplinary process, and instead explored what might be done to prevent them entering it at all.

Verita might, as they say, “want to consider their position”. They might want to acknowledge their mistakes and learn their own lessons for any future investigations they are commissioned to do on employment matters in the NHS.

The Trust might want to accept that Amin Abdullah’s death might be representative of a wider concern, and not an isolated example, There are some signs they are doing this. They (and the Minister) will need to consider the issue of race themselves since Verita have let them, and us, down by not doing so.

We can no longer afford to ignore the possibility of race discrimination in disciplinary processes involving BME members of staff.

Silence is no longer acceptable. Indeed, it is unclear why public organisations are paying consultancies for analyses which fail to be sufficiently curious and are therefore incapable of prompting learning.

A good start might be if Verita returned their fee?

Roger Kline is Research Fellow at Middlesex University Business School

Footnote. A moving video curated by Amin Abdullah’s partner Terry Skitmore and Prof Narinder Kapur is available at https://www.youtube.com/watch?v=sN9ro4CPQYo