July 16 2019

Is much NHS discipline unfair and pointless?

Roger Kline is Research Fellow at Middlesex University Business School and co-author of both Fair to Refer (GMC 2019) and Being Fair (NHS Resolution 2019). Here, he questions whether NHS disciplinary action is often counter-productive, unfair or pointless?

Vast amounts of management energy, time and money are expended on disciplinary cases in the NHS. In 2017 there were some 16,000 disciplinary investigations in NHS Trusts in England.

There is no systematic evaluation of whether the current use of disciplinary processes in the NHS is an effective approach to patient care and safety or to organisational effectiveness. Two new reports and a recent guidance letter from NHS Improvement reflect those concerns.

A typical NHS disciplinary policy states:

1. The disciplinary policy is aimed at ensuring that issues of misconduct are managed and dealt with in a fair and consistent manner.
2. The Trust promotes high standards of behaviour and conduct for all employees and takes appropriate corrective action where those standards are not met.
3. Disciplinary rules and procedures are designed to assist in the standard setting for conduct and behaviour. It is important that managers and employees understand them.
4. The disciplinary process is not intended to be punitive in nature. The procedure therefore describes the steps to be taken to deal with each situation reasonably and, wherever possible, help the person concerned to improve their standards of conduct of behaviour to reach acceptable standards.

To take each of those claims in turn:

1. “The disciplinary policy is aimed at ensuring that issues of misconduct are managed and dealt with in a fair and consistent manner”

Learning lessons to improve our people practices (2019) is a new analysis of NHS disciplinary practice undertaken by NHS Improvement after the scandalous case of Amin Abdullah who committed suicide as a result of fundamentally flawed disciplinary processes. It concluded that current shortcomings in NHS disciplinary processes included:

“poor framing of concerns application of local policies and procedures; lack of adherence to best practice guidance; variation in the quality of investigations; shortcomings in the management of conflicts of interest; insufficient consideration and support of the health and wellbeing of individuals; and an over-reliance on the immediate application of formal procedures, rather than consideration of alternative responses to concerns.”

In Fair to Refer (2019) Atewologun and Kline explored why some groups of doctors are much more likely to be referred by employers to the General Medical Council than others – normally accompanied by some sort of disciplinary investigation. In Being Fair (2019) Chaffer, Woodward and Kline explored the links between disciplinary action, just culture and patient safety.

In A fair experience for all (2019) the most recent data on disproportionate disciplinary action against BME staff is summarised:

We know some investigations are shoddy and biased because Employment Tribunals and independent reviews have said so. The career-wrecking victimisation of Eva Michalek (maternity leave), the dismissal of Richard Hastings (race discrimination), and Elliot Browne (race discrimination) each cost the NHS £1million or more without any apparent consequences for those responsible. The case of Gordon Flemming, a disabled ambulance service mechanic who an ET decided had been shockingly treated and the case of Amin Abdullah whose treatment prompted the new NHSi guidance are unfortunately the tip of an iceberg. It is notable that in all these cases discrimination in various forms seems central to what happened. Archibong and Darr (2010)  suggested some of the reasons why such staff might be more likely to be disciplined almost a decade ago and both Being Fair and Fair to Refer suggest their analysis is relevant today. The concluded key cause was:

“….line managers found it difficult to deal with issues relating to disciplinary and there were often inconsistencies in the application of disciplinary policies……. It was perceived that managers were more likely to discipline BME staff over insignificant matters and that disciplinary concerns involving staff from minority ethnic backgrounds were not always considered to have been dealt with fairly and equitably by human resources managers.”

Finally, the lack of evaluation means there is a very considerable unexplained variation between frequency of investigations between NHS Trusts, with no apparent correlation between higher numbers of disciplinary cases and improved quality of care.

2. “The disciplinary process is not intended to be punitive in nature.”

In all of the individual cases referred to above, Employment Tribunals and an independent investigation concluded the impact of the process was to punish the staff concerned. In considering the treatment of staff who raised concerns The Francis Review (2015) noted an element of retaliation involving disciplinary action against a number of staff who made protected disclosures.

NHS HR teams have largely forgotten the helpful NHS The Incident Decision Tree, which cautioned against excessive suspensions or ignored the critical comments of the Appeal Court in 2012 on NHS “kneejerk” suspensions  despite (or sometimes because) of the damaging impact on staff health of such suspensions.

Disciplinary processes invariably isolate the staff concerned, take an extraordinary amount of time and are likely to damage both the mental and/or physical health of the staff concerned.

3. The Trust promotes high standards of behaviour and conduct for all employees.

There is no evidence this occurs, whilst research (in this case involving doctors) suggests that disciplinary action can result in anger, guilt, shame and depression and future “defensive practice”.

Where disciplinary action is inappropriately used (and it is) then it may not only create defensive practice but also make staff more cautious about raising concerns and admitting mistakes. It may well often be disruptive of team working if the way that “high standards” are applied are believed to only apply to some staff, not all.

4. Disciplinary rules and procedures are designed to assist in the standard setting for conduct and behaviour.

The quality of investigations and hearings is patchy even when alleged experts are hired. Thus, the external (and very expensive) investigators brought in to review the Amin Abdullah case completely overlooked the possibility of race discrimination whilst those advising NHS Improvement on the Fit and Proper Persons test similarly display a fundamental misunderstanding of the issues around harassment and diversity. Unless investigations recognise the risk of bias it is easy to overlook it or incorporate bias (especially confirmation bias) in both process and conclusion.

A flawed methodology.

Disciplinary processes across the public sector assume that policies, procedures and training make it safe and effective for individuals to raise concerns or be judged fairly. The “methodological individualism” underpinning disciplinary processes is built on the individualism in UK employment law and still permeates HR practice. But research on other aspects of workforce culture such as bullying, and discrimination, conclude that the reliance, in isolation, on policies, procedures and training to produce fair or effective improvement outcomes is simply not evidenced.

This individualistic HR paradigm is finally under pressure with much more interest in data driven prevention, proactive initiatives, and a “public health” approach to poor culture with an awareness that we have no idea whether current approaches are working and significant evidence they are not. For example, we know that bullying requires a shift in organisational climate whilst on discrimination it requires challenging institutional discrimination, and whistleblowing requires a recognition that reliance on protecting individual whistle-blowers rather than preventing the need for whistleblowing has failed. Yet for discipline we largely retain an individualist paradigm.

Signs of change?

There are some reasons to think things might get better:

• NHS workforce pressures mean the balance between whether staff are primarily seen as a cost or as an invaluable asset is changing. That means paying more attention to support for staff and less emphasis on behaviours that exacerbate staff shortages, absenteeism and turnover, and is reflected in The Interim NHS People Plan (2019) .
• There is an awareness of the rising cost of toxic cultures and behaviours on patient care and safety. Thus Lewis and Kline (2018) estimated the cost of bullying in the NHS at £2.28 billion a year in England alone, something disciplinary processes have utterly failed to tackle.
• A growing understanding of “human factors” science and the ways in which unsafe practices and human error require a radically different approach when things don’t go as planned – one underpinned by a learning culture not a blame culture.
• An awareness of the crucial importance of inclusion, since inclusive workplaces are much more likely to be places where it is safe to have difficult learning conversations. Where managers and staff feel able to openly discuss feedback, appraisals, errors, concerns and how to improve how teams work, disciplinary policy should be a rare occurrence. Where honest conversations do not take place it is more likely that a formal investigation is launched rather than an informal learning conversation. Once that happens there is always a risk that the investigation becomes a self-fulfilling prophecy as confirmation bias (and other biases) take over, and managers seek out evidence that confirms the need for an investigation and ignore evidence that one is unnecessary or counter-productive. In such circumstances, investigations into some groups of staff may be especially prone to bias.

Different approaches?

Both Fair to Refer for the GMC and for NHS Resolution reflect an acceptance that the current approach to discipline in the NHS is flawed. Fair to Refer explores ways in which a complex mix of factors can lead to bias in referrals to the regulator and make detailed proposal on preventing this, including embedding accountability into referral processes.

Being Fair promotes a quite different approach to encourage learning not blame. It highlights a number of approaches. One involves a “triage” system to insert a pause to determine whether disciplinary action is necessary or inappropriate. The effect of this behavioural nudge is to introduce much greater accountability and in those organisations that have introduced it, explaining to middle managers why, it has resulted in significant reductions in disciplinary cases.

Some organisations have gone much further. Mersey Care NHS Trust has sought to replace the current retributive model which focuses on who is to blame and must therefore risk punishment with a restorative justice model adopted from and influenced by the work of Dekker. Their introduction of a “just and learning culture” seeks to replace investigations with conversations, and assumes that where matters do not go as planned, the focus must be on who is hurt, what do they need, who should meet those needs, and what can be learnt. The initial impact was very significant. Staff are more willing to report concerns and mistakes, disciplinary cases and suspensions reduced radically in numbers, there was a positive impact on turnover and sickness and an independent evaluation found financial savings for the Trust of at least 1% of turnover.

Both these approaches are characterised by early intervention, a focus on how to prevent a recurrence rather than who is to blame, and a behavioural nudge to managers requiring them to justify any formal intervention such as a disciplinary investigation. As one HR director put it, we now ask “”what’s the point of a formal investigation” before allowing one to start.

Impact on regulators

The wind of change is impacting professional regulators too:

• The new NMC Fitness to Practice strategy demonstrates an explicit understanding of human factors and the risk of bias at every stage of the process and includes a potential challenge to employers with disproportionate patterns of referrals
• Fair to refer notes that employer referrals to the GMC are falling but remain very damaging and especially impact staff who are seen as “outsiders” such as overseas trained doctors, Speciality and Associate Specialist doctors, locums and overseas trained BME GPs in challenging areas. Adoption of the recommendations in Fair to Refer will support recognition of human factors and accountability challenges within the GMC processes.

Going forward

These reports and the NHSi guidance if implemented will assist in reducing levels of disciplinary action by making it more a matter of last resort then a knee jerk response, emphasising learning not blame, prioritising early intervention, challenging both bias and shoddy investigations.

The NHS Improvement Guidance is certainly constructive, though it could have emphasized the serious innate failings of the current individualistic retributive model more. The GMC have already agreed to adopt the Fair to Refer recommendations which will insert greater accountability into decision making whilst Being Fair is intended to encourage employers to adopt best practice to help prompt a radical rethink of the use of current disciplinary processes.

However, if past performance is a guide, we can expect substantial numbers of organisations to “go through the motions” focused on improving policies, procedures and training but not one which seeks to anticipate concerns moving towards a preventative, proactive approach and adopts a restorative approach when things do not go as expected.

In such employers, NHS disciplinary action is likely to be counter-productive, unfair or pointless. That is simply not good enough for staff or patients and we now have an evidence base to demonstrate why.

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