The Francis report, the government’s response and discussion about doctors’ contracts provide an opportunity to reclaim the NHS’s employment relationships and limit the need for lawyers
The Chartered Institute of Personnel and Development celebrates its centenary this year. The organisation has its roots in the Welfare Workers Association, established in 1913 at Rowntrees in York.
‘I wonder whether, in the past 10 or 20 years, we have let lawyers determine what the employment relationship should be?’
The principles of that organisation are as important today as they ever were and I am immensely proud to be part of a profession dedicated to improving the working lives of employees – recognising that staff are most effective when they are safe, valued and engaged in the work they do.
Over the past century employment relationships have changed considerably. During the Great War millions of women entered paid work. Then we had the general strike of 1926, the rise of trade unions, the creation of the welfare state, the Equal Pay Act, Wapping and the credit crunch.
But I wonder whether, in the past 10 or 20 years, we have abandoned a bilateral emotional and psychological relationship between employer and employee that embodied trust and expectation and reciprocity? And in its place we have adopted wholly legal contractual relationships where effectively we (employers, trade unions and employees) have let lawyers determine what the employment relationship should be?
Reclaim the territory
It seems to me that it is time to reclaim the territory. I know there will be those who claim it is not possible, that we have become a litigious society, but I do not think that it is a fanciful idea. When employment tribunals (then industrial tribunals) were first established, the plan was that they would be a speedy, informal method of resolving disputes without the need for lawyers. Ha, I hear you say. Where did it all go wrong?
Nowhere is this relationship more in need of repair than with our doctors. The procedure for managing the conduct and capability of doctors is known as maintaining high professional standards. Introduced in 2003, at the same time as the current consultant contract, it has become, through case law, the antithesis of a speedy resolution to disputes. In my view, it is now certainly partly responsible for a decline in the employment relationships and a breakdown in trust and confidence when things go wrong (and they occasionally will).
It can often happen like this, leading it to spiral out of all proportion (excuse the parody):
- a concern is raised about a doctor’s performance;
- the employer, mindful of all the case law about doctors’ discipline, turns to the standards;
- the doctor, mindful of all the case law about doctors’ discipline, turns to maintaining high professional standards, a medical defence union and a lawyer;
- the employee’s lawyer writes strong letter, alleging inappropriate behaviour of employer, and threatens legal action unless proceedings are immediately ceased;
- the employer organises strong response from its own lawyer in response (or vice versa).
‘Surely it would be better to have a process that encourages early mediation and joint problem solving?’
This becomes an abdication of who is responsible for the employment relationship. The relationship has now effectively been handed over to lawyers and, as a result, will often end in acrimony, lack of trust, resignation or dismissal. The reasons for the breakdown are often not associated with the original issue, and in the process contaminate the relationship with other staff and managers and create an unhelpful climate of fear on all sides.
This has to stop. It is not good for patients, not good for doctors and not good for employers who become accused of heavy handedness and a hostile culture.
Surely it would be better to have a process that encourages early mediation and joint problem solving? One that recognised the sanctity and importance of constructive relationships between employer and employee where staff can raise concerns and employers could highlight performance issues – without either of them fearing a letter from the others lawyer, with the almost inevitable spiral of declining trust that follows? This must surely be the ambition of employers and the British Medical Association
Recent events like the Francis report, the government’s response and discussion about doctors’ contracts provides an opportunity for us to reclaim our relationships, limit the need for lawyers (other than on the most serious issues) and build a trusting, mutually appreciative employment culture.
I’m up for that and we will be asking employers what they think. We will be talking to employers about what needs to change and how quickly.
Dean Royles is director at NHS Employers