Enterprise and Regulatory Reform Bill

Lord MacKenzie of Culkein Excerpts

Wednesday 14th November 2012 Lords Chamber

[Lord MacKenzie of Culkein]

My Lords, I do not believe for a moment that the provisions for the removal of the so-called regulatory burdens relating to employment in this Bill, which are clearly intended to water down or remove hard-won protections for workers, will do anything whatever to meet the claims of the coalition that economic recovery will be more likely and that more workers will be taken on as a consequence. Quite simply, I am of the view that a lot of the stuff on employment in the Bill is dogma-driven.

I want to concentrate on Clause 15 in Part 2, which deals with whistleblowing, and on Clause 61 in Part 5, which relates to civil liability for breach of health and safety duties. The proposed changes on whistleblowing will make it more difficult—much more difficult—for employees to enjoy protection from detriment and/or dismissal. The changes proposed in the Bill will mean that whistleblowing claims will be successful only if the worker believed that the disclosure was made in the public interest and can show that that belief was reasonable. The Public Interest Disclosure Act 1998 was never intended to be a complainer’s charter, which is why the legislation was so tightly drawn. Notwithstanding the Employment Appeal Tribunal decision in 2002 in Parkins v Sodexho, it is still not easy for anyone to make a protected disclosure under the legislation. The 1998 Act was successfully introduced after outrage at a number of disasters and company failures where many employees had known for a long time that matters were not as they should be but were afraid to go to the employer or, where they were ignored, to go public lest they would be dismissed or suffer other detriment. I can give a couple of examples, such as the Piper Alpha tragedy and the Barings Bank fiasco.

What is the background to the Government’s proposed changes? I think, as I suggested earlier, that it is an ideological matter where the hard-won rights and protections of working people are to be removed; yes, rights and protections, but also obligations. That is because there are obligations on employees to draw attention to dangerous practices and wrongdoing. As a nurse, I have always thought it in the public interest to draw attention to health and safety issues, both the health and safety of staff and, crucially, of patients.

The environment that obtains in health and other care services has never been very good at providing support mechanisms for whistleblowers. This is not new. Those who were around 20 or more years ago will remember the Graham Pink saga, where a well respected charge nurse, former military nurse and really decent human being—someone who could never be construed as a trouble-maker—complained about poor staffing levels on three wards at Stepping Hill Hospital, for which he had responsibility on night duty and where patients with multiple pathologies were being treated. Levels of staffing were so bad that patient care was poor in the extreme but he could not get management to listen. He went to the health authority but it did not listen. The regional health authority and the Department of Health did not listen, or even respond to his communications. He eventually went to the press, with the predictable outcome that he was sacked for breach of confidentiality.

In the end, Graham Pink was proven to be right. He was exonerated but nevertheless his career was destroyed. Lessons were supposedly learnt, but in reality it is a case of, “Plus ça change, plus c’est la même chose”. A quarter of a century later, we have two well publicised examples in healthcare. First, there is Winterbourne View—a classic example of where someone had to go outside the organisation, where management support and clinical governance were non-existent. Had someone not been brave enough to be a whistleblower, that maltreatment would be continuing to this day.

Secondly, the initial Francis report into the Mid Staffordshire NHS Foundation Trust raises the case in point. Despite that trust having a whistleblowing policy in place, nurses who complained about inadequate staffing never got a satisfactory response. Because managers at senior level did not listen, any prospect of a persistent pattern of reporting of concerns was discouraged. Managers told junior nurses that they should take care in making statements about staffing levels, and therefore it is not surprising that a culture of fear mixed with apathy was engendered, with the inevitable result that there was substandard care and far too many unnecessary deaths.

The Mid Staffordshire issues came at a time of relative feast for the health service. With the Nicholson challenge and the mix of cuts and reorganisation in the NHS, I think there will be relative famine in future years. We need nurses and clinicians to be able to speak confidently where there are very real concerns about delivery of care and to not be afraid of victimisation, bullying or worse. The NHS constitution, which is out for consultation at the moment, has a section on staff responsibilities to the public, patients and colleagues. It says that staff should aim to raise any genuine concern about risk, malpractice or wrongdoing. Will these new hurdles in whistleblowing make it more difficult for someone to expose wrongdoing in the caring services? We need to know.

Whistleblowing take courage. Fear of victimisation or losing one’s job is very real, despite all the efforts made in the health service by the Department of Health, regulated bodies, trade unions and others to show that there are occasions when it is justified. As the noble Lord, Lord Low of Dalston, said, it is very unwise for any Government to make it more difficult for whistleblowers to do what is right. Had there been whistleblowing 25 years ago, we would not be in some of the difficulties we are in over Savile and Hillsborough today.

I now turn briefly to Clause 61 in Part 5, which will amend Section 47 of the Health and Safety at Work etc. Act. It looks as if it is going to remove the ability of an employee to enforce a civil claim for workplace injury on the grounds of breach of workplace regulations. I am a nurse not a lawyer, but I understand the concept of strict liability, which was introduced over a century ago to recognise the very different balance of power between employer and employee. This Bill goes much further than removing strict liability, which the Government seems to justify by saying that they want to remove the burden of health and safety regulation on employers. The amendment will not achieve that objective, because compliance will still be there for the good employer. However, it will assist the unscrupulous to ignore health and safety law by reducing the chances of successful civil action. That is going to lead to more workplace injury in the future. We all know that almost all enforcement of health and safety law is done through civil litigation rather than criminal prosecution.

As a simple example, as a former theatre nurse, I am well aware of the problems of rubber gloves causing skin reactions and so on. There was a case where a member of my union, a nurse, succeeded in a claim where strict liability applied. The nurse suffered a series of serious anaphylactic episodes as a result of exposure to latex gloves coated with corn powder. The court found in her favour and awarded compensation, as it held her employer was strictly liable because it had not ensured under the COSHH regulations that employees were protected from harmful substances. Will the Minister confirm that this suggested amendment to the Act would mean that this nurse, whose nursing career was ended, would not receive compensation for an act of omission on the part of her employer?

As has already been said, this part of the Bill was introduced on Report in another place and has not been subjected to proper scrutiny. As my noble friend Lord Whitty said, some parts of this Bill might be good, some bad and some ugly. This bit of the Bill is particularly ugly and I think it deserves to be removed long before we ever get to Committee.