Independent Review Panel: Guidance Framework
Table of Contents
1.1. Purpose of this document
2. IRP Scope
3. Healing Principles
4. Exclusions from IRP scope
5. Membership of the IRP
6. Who can access the IRP
9. Testimony and supporting information
10. Recommended outcomes available to IRP
10.1. Outcome 1: Apology and/or Recommendation for Organisational Learning
10.1.2. Recommendation for Organisational Learnings
10.2. Outcome 2: Provision of Psychological Therapies – Validium
10.3. Outcome 3: Financial payment; Re-engagement or Re-employment or Re-deployment
10.3.1. Financial payment
10.3.2. Re-engagement, Re-employment or Re-deployment
10.4. Outcome 4: Referral to other process
10.4.2. Concerns about individuals who have left NHSH
10.5. Outcome 5: No further action from NHS Highland
10.6. Status of IRP Recommendations
10.7. Legal claims and use of Settlement Agreements/COT3
10.8. Proactive steps by IRP
10.10. Final Report of IRP Learnings
10.11. Record Keeping
1.1 Purpose of this document
This document is designed to act as a guidance note for the Independent Review Panel stage of the Healing Process at NHS Highland. The document will be of use to members of the co-production groups, to NHS Highland Board members and to other stakeholders who are participating in or supporting the Healing Process design effort.
This document might evolve and change as the Healing Process planning and implementation phase matures. This document is, therefore, subject to further change with consultation as appropriate and should be read with this context in mind.
Any individual who holds or has held a directly employed position and contract of employment within NHS Highland – within Highland or Argyll and Bute – who feels that they have been harmed by the cultural issues related to allegations of bullying and harassment up to and including 31st December 2019 in their capacity as a current or ex-employee, whether as actual or perceived victim, bystander, bully or otherwise. This process is not limited to those who have previously raised concerns. These individuals have access to the full Healing Process and are eligible to seek/receive a recommendation for all/any of the five outcomes available.
In addition, those who are not, or were not, directly employed by the Board but who have, or had, regular and consistent membership of formal governance arrangements (e.g.-NHSH Board, NHSH Committee’s and Sub Committees and the Argyll & Bute IJB) and who experienced historical bullying up to and including 31st December 2019 whilst carrying out that role, are also eligible to register for the Healing Process. These “Expanded Scope Individuals” will be able to access the Healing Process but will have a reduced range of outcomes available. Expanded Scope Individuals will have access to: a one to one session for a supported discussion; an apology; access to Psychological Therapies; access to an Independent Review Panel (IRP). Expanded Scope Individuals will not be eligible for a recommendation for outcomes 3 or 4 of the Healing Process which include – outcome 3 (Financial payment; Re-engagement, Re-employment or Re-deployment) or outcome 4 (Referral to other processes). All Healing Process documentation, including this IRP Guidance, must be read with this limitation in scope in mind.
Where an individual could be categorised as eligible to access the Healing Process as both a current/ex-employee and an Expanded Scope Individual, outcomes 3 and 4 would only be available to the extent that the individual is eligible for such a recommendation in their capacity as a current or ex-employee under the Healing Process.
2. IRP Scope
One outcome from the 1:1 discussion can be for the matter to be considered by an Independent Review Panel (IRP) who will make recommendations to the Chief Executive as the Accountable Officer for NHS Highland Board with delegated authority from the Remuneration Committee, and within the internal governance framework agreed by the NHS Highland Board, on how to resolve individual cases. The IRP has power to make recommendations only. Cases will be presented to the board on a no-names basis save as otherwise agreed. As explained in 10.3.2 recommendations for re-engagement/re-employment/re-deployment will be considered by the Director of Human Resources and Organisational Development who will ensure that the recommendation is explored delegating responsibility for action as appropriate. The NHSH board will only be informed of the outcome of such recommendation as appropriate and after the outcome has been finalised by the Director of Human Resources and Organisational Development.
The IRP has the power to make a recommendation for one or more of the following in each case:
- Outcome 1: an apology and/or recommendation for organisational learning.
- Outcome 2: assessment for provision of psychological therapies.
- Outcome 3: financial payment (which are capped in accordance with the Levels set out in 10.3) or consideration for: Re-engagement or Re-employment or Re-deployment. Outcome 3 is not available to Expanded Scope Individuals.
- Outcome 4: referral to an internal process. Outcome 4 is not available to Expanded Scope Individuals. or
- Outcome 5: no further action by NHS Highland (NHSH).
The IRP will focus on listening and understanding the experience and circumstances from the applicant’s perspective. The IRP is tasked with finding the resolution that is most likely to aid healing for the individual and organisation.
3. Healing Principles
The “Healing Principles” for the IRP to have regard to in all of its actions are: to deal with each case with kindness, compassion, empathy, equity, fairness and accountability, taking into account the interests of the applicant, and all those who could be affected (but who the IRP may not hear from) including those who may be or be perceived to be witnesses, bystanders, other affected employees/ex-employees, victims, individuals accused of wrongdoing or other failures, the community as a whole and NHSH.
4. Exclusions from IRP scope
The IRP is not a judge and jury of the facts. This is a key difference between the Healing Process and the internal Dignity at Work/Disciplinary processes, and external court and tribunal processes.
The IRP deals with “harm” and “healing” taking into account the view point of the individual accessing the Healing Process only. It does not deal directly with “fault” and “loss”. The Healing Process is being made available as an additional avenue separate from the traditional investigative or adversarial processes which are normally available to support individuals in healing. This has many benefits, including ease of access for individuals, an open and helpful forum, and an aim of finding healing rather than apportioning blame.
This is an innovative process brought about by an extraordinary set of events including the independent Sturrock Report. A unique feature of this process is that it will hear only one version of events, from the individual’s perspective. This is to ensure the individual’s account is listened and responded to without judgement.
Given this different approach which it is hoped will benefit individuals in healing, there is a need to recognise that it would not be fair for the IRP to make a determination of fault in circumstances where it has not heard opposing points of view. It would also not be appropriate for the IRP to recommend a financial payment directly based on financial loss. In all other forums, compensation for loss can only be awarded after a determination of fault and strict rules for compensating financial loss would normally apply. The circumstances in which financial payment may be available are set out in respect of outcome 3 below.
In striking the right balance between ease of access, and not wanting to re-open past trauma more than necessary, while still being an authentic, meaningful and accountable process, the IRP will not be hearing both sides and apportioning blame.
As such, while the IRP can make recommendations based on its understanding of the applicant’s personal story, it is beyond the IRP’s scope to find, for example, that another individual or NHSH itself is to blame. However, it is understood that for many individuals, an analysis of the facts and addressing “blameworthy” conduct is essential from their perspective to be heard. For this, the IRP will not itself make a determination of blame, but may refer out to the appropriate process where available and appropriate.
5. Membership of the IRP
This panel will be made up of members who are independent from NHS Highland. The composition of the panel will be made up of 5 individuals including the following experience (noting that an individual may satisfy more than one of the listed experiences) as follows:
- Employment Law Specialist (Shepherd & Wedderburn LLP)
- Retired NHS HR Director
- Retired NHS Clinical Director
- Retired Union Official
- NHS Non-Exec Director (Chair)
- A Lived Experience representative
Individuals will only be appointed to the IRP after a conflict check. In the event that a panel member has a conflict of interest or a connection to any particular individual case, consideration will be given as to how this will progress which will be discussed with the individual this could include progressing with the 4 remaining members of the panel or re-convening the panel with an alternate member.
The default position is that there will be one panel which hears all cases, save where the use of alternates, may be considered, if required to account for conflicts of interest, incapacity, or other unresolvable unavailability. The panel composition may need to be reviewed if the volume of cases means that this approach is unsustainable.
6. Who can access the IRP
All those entering the Healing Process can make a request at the 1:1 that their case progress to an IRP. It is understood that engaging in the IRP process itself will have a healing value for some. For others, the IRP is relevant as a means to an end in that some outcomes are only available if recommended by the IRP (and could not be accessed directly from the 1:1 discussion). For some individuals, they will not wish or require to access the IRP stage, as they will be able to access the outcome sought directly from the 1:1 stage. As with the 1:1 stage it is recognised that some individuals may be unable to access this process themselves (due to death or incapacity) and in those circumstances they can be represented by another party.
Individuals who access the Healing Process will be entitled to bring a trade union representative or one companion of their choosing to each stage, including the IRP. The only limitation is that the companion should not be a legal representative, as this process is focussed on healing and is intended to be a move away from legal processes which can be formal and adversarial. The role of the companion is to act as support. They may ask questions and call for breaks. They can respond on behalf of the applicant, however, the IRP will be entitled to place greater weight on responses from the applicant.
Before the outbreak of the Covid 19 pandemic, the intention was that the IRP discussion would be held by way of face-to-face meeting whenever possible with other options being available where appropriate including: video conference; telephone; by way of written representation; pre-recorded video statement; or (in limited circumstances) via participation by a representative only. As a result of the Covid 19 pandemic the Healing Process, including the IRP discussion, will now be delivered remotely in order to both comply with the social distancing requirements and to provide an equitable process for all irrespective of geographical location. The default position will be participation by way of video conferencing technology, with other forms of remote access as set out above being available on request where appropriate. In exceptional cases, should an individual have any special requirements which causes particular issues in engaging remotely, then this will be looked at on a case by case basis to determine what additional support may be required to facilitate engagement in this manner.
It is anticipated that the IRP discussion will last up to 2 hours but with flexibility to extend discussions in exceptional circumstances. There will then be a period of confidential consideration by the IRP. It is hoped that in most cases the IRP will be in a position to make a recommendation based on the information available to them at this time. However, in some cases, the IRP may request further information from the individual either during the discussion or after, in order to aid its deliberations. It is anticipated that a request for further information is most likely to occur where an individual is seeking financial payment or Re-engagement, Re-employment or Re-deployment. The IRP will not contact anyone else for information on an individual’s case save with express consent of the individual.
There will be a second IRP discussion only in exceptional cases. The IRP will aim to provide their recommended outcome within one month of the final IRP discussion with the individual.
9. Testimony and supporting information
The primary information that the IRP will be taking into account is the testimony of the individual entering into the Healing Process. As such, it is crucial that individuals tell the truth. Individuals entering into the Healing Process, and the IRP stage will be required to confirm their commitment to honesty at the outset.
There are no prescriptive rules about what other materials (if anything) an individual should bring to the IRP in support of their testimony. This is a matter of choice for the individual. For those who are submitting papers in advance, the process for doing so will be explained in the invitation to the IRP. It is also understood that there will be circumstances where an individual may have wished to bring further information, but is unable to do so (for example because they have never been able to access such information or have decided not to retain materials). Each case is unique and the IRP will take into account all information before it. It is not envisaged that other witnesses will provide statements to the IRP. Exceptions can be made at the request of the individual or IRP where witness testimony is considered appropriate in all the circumstances, including the nature of the outcome sought.
Where individuals are seeking financial payment, the IRP will need to consider the appropriateness of a financial payment (and if so the value) in all the circumstances and in line with the guidance Levels explained at 10.3 below. As noted above, while a financial payment may be available to recognise harm suffered and to support healing, it is not intended to nor will it directly compensate for financial loss. Supporting information will be required for the IRP to make an informed evaluation. Such information could include, for example:
- The written, spoken or pre-recorded video account of the applicant.
- A harm impact statement from the applicant explaining the harm suffered and how the harm affects/has affected them.
- Supporting documentary information of harm suffered and/or the impact it has had.
- Written medical information from a GP or other specialist (whether accessed privately or on the NHS) on the harm suffered and/or the impact that harm has had on the individual.
- A statement from another individual on the impact the harm has had on the individual (but not the events that led to the harm itself).
As explained above, the IRP will not hear statements from other witnesses in most cases. While it is understood that for some applicants, they will consider statements from witnesses as relevant to supporting their account of what happened to them, the function of the IRP is not to apportion fault, blame or loss. Rather, the IRP’s function is to understand harm that the individual feels and to identify, what, if any, outcome may best facilitate healing. Witness statements will not normally be relevant to that determination. The exception to this is that witnesses may have a greater role where the applicant is incapacitated.
10. Recommended outcomes available to IRP
The available outcomes are set out below. These are not mutually exclusive. It is possible for an individual to access more than one outcome. Each individual’s experiences and needs are unique and as such we understand that their journey through the Healing Process must also be unique.
An individual should identify which outcome(s) listed below it is seeking from the IRP. This should be done in advance in writing and will be confirmed by the IRP at the outset of the discussion. It is ultimately a matter for the IRP to determine which outcome(s) to recommend in a particular case to best aid an individual’s healing. They will at all times be guided by the Healing Principles. As set out above, the IRP makes recommendation(s) only. Once the IRP has made its recommendation(s), there is no right of appeal by the individual against the decision of the IRP.
As noted above, Expanded Scope Individuals are not eligible for outcomes 3 or 4. The IRP cannot make a recommendation for such outcome in respect of Expanded Scope Individuals. Where an individual could be categorised as eligible to access the Healing Process as both a current/ex-employee and an Expanded Scope Individual, outcomes 3 and 4 would only be available to the extent that the individual is eligible for such a recommendation in their capacity as a current or ex-employee under the Healing Process.
10.1 Outcome 1: Apology and/or Recommendation for Organisational Learning
For many, a key step towards healing will be having the harm they have experienced listened to without judgment, acknowledged, and a sincere apology given. The IRP having heard from the individual during the IRP Discussion, may make a recommendation for the Chief Executive to issue a letter of apology on behalf of NHSH.
The IRP recommendation will include details about the suggested content of the apology. The final wording of any apology issued will be a matter for the Chief Executive. All apologies will be bespoke to the individual and reflect their circumstances while addressing any common themes consistently. The apology will address harm and the impact it has had on the individual. It will also include an acknowledgement of any failures of NHSH where appropriate.
The IRP will not recommend that apologies name or blame other individuals, or are given by named individuals other than the Chief Executive. However, a recommendation of mediation may be a possibility in some cases under outcome 4 and should be explored where an apology or dialogue with a named person would be beneficial to healing. Mediation is a voluntary process and will only be taken forward with the consent of all relevant participants.
10.1.2 Recommendation for Organisational Learnings
Some individuals entering the Healing Process will identify areas in which they believe NHSH could improve its practices to the benefit of themselves and/or others, both to reduce the risk of harm and to create opportunities for positive innovation. It is crucial that these opportunities for learning and improvement are identified and responded to appropriately.
The IRP may therefore make a recommendation to NHSH that organisational learning is implemented, delegating responsibility for this action as appropriate. These recommendations will relate to further review of matters/processes/procedures. The IRP will at all times remain mindful that in its functions it will only have access to information from the individual’s perspective. As such, in making any recommendations to NHSH it will not be prescriptive about the outcomes, but rather, will highlight the perceived problems and may recommend that steps are taken to investigate further and/or address findings. The IRP may make such recommendations as a result of one individual seeking this outcome, or in response to a theme that it becomes aware of during the course of the Healing Process. It would then be a matter for the Chief Executive or Director of Human Resources and Organisational Development to ensure that the recommendation is explored and if appropriate implemented, delegating responsibility for action as appropriate.
NHSH will maintain a record of all IRP recommendations for Organisational Learnings and provide a public quarterly status update in the 24 months after the Healing Process closes on actions taken in response to such recommendations.
10.2 Outcome 2: Provision of Psychological Therapies – Validium
The IRP can recommend that an individual be referred to an initial psychological needs assessment by Validium to determine what support or therapy is clinically indicated and should be provided. Any assessment or subsequent treatment plan will be held complying with the normal requirements of the provider in relation to confidentiality. The process for agreeing the nature and scope of any psychological therapies are described in the Psychological Therapies Guidance Framework.
It is noted that the individual may request, and the IRP may recommend, multiple outcomes. As such, the individual may be offered psychological therapies in addition to other outcomes. If, after receiving their outcomes an individual considers that psychological therapy is no longer desired, the individual can withdraw from psychological therapies. As explained below there is no right of appeal against a decision by the IRP. As such, if an individual considers that Psychological Therapies may be of benefit then they should include this in their request to the IRP.
10.3 Outcome 3: Financial payment; Re-engagement or Re-employment or Re-deployment
The IRP may make a recommendation under outcome 3 for current or ex-employees only. Outcome 3 is not available to Expanded Scope Individuals.
10.3.1 Financial payment
It is accepted via the findings of the Sturrock Report that certain cultural issues in NHSH may have led to some individuals experiencing harm. It is because of these findings that NHSH has made this Healing Process available. This process is focussed on healing and is in addition to existing rights that individuals may have. It is therefore not intended to mirror either the process or outcomes of other available forums and financial payment is being made available under this process in recognition of the fact that some individuals will be unable to access a financial payment or monetary compensation in another forum.
Financial payment will be available in cases where the IRP considers that: the individual has incurred harm as a result of the NHSH culture; and a financial payment would be appropriate in all the circumstances and in line with the Healing Principles.
In such cases the IRP will also recommend a financial payment sum; include an explanation of what the sum relates to (this may be relevant for tax purposes) and a justification for arriving at that sum. The IRP recommended sum will be the gross amount. All sums shall be paid subject to any applicable deductions for tax and national insurance.
This recommendation will be sent to the Chief Executive as Accountable Officer on a no-names basis unless agreed otherwise. The Accountable Officer will have delegated authority from the Remuneration Committee as a Committee of the Board on how to resolve individual cases and will present the recommendations to the Remuneration Committee for final approval. The Minute of the Remuneration Committee will be presented to the “in committee” session of the Board for noting. In exceptional circumstances as per the guidance there are situations where the recommendations of the IRP will require to be approved by the NHS Board and Scottish Government.
The arrangements for any financial payment will require to be in accordance with the provisions and the Corporate and Financial Governance reporting requirements of NHS Highland, in considering each recommendation for financial payment, the Chief Executive as Accountable Officer will be required to comply with the provisions of DL(2019)15: NHS Scotland: Guidance on Settlement and Severance Arrangements as may be amended or replaced as appropriate following discussion and agreement between NHSH and the Scottish Government.
As noted at the outset, when determining whether any financial payment should be paid, and if so what level of payment is appropriate, the IRP will be guided by considering harm and healing and the overriding Healing Principles together with the Levels set out below. The IRP will consider the impact of harm holistically. The IRP will not focus directly on financial loss or on fault/blame (those issues can more appropriately be considered in another forum which analyses and tests the full facts from both sides: such avenues will be available to some via other processes or legal claim routes). It is accepted that the harm an individual feels may be connected to both financial loss and fault. However, harm can also exist without a direct financial impact. Assessing harm in monetary sums is imperfect, but financial payment may be the most appropriate outcome in some cases.
All relevant internal and external governance arrangements must be applied. While the IRP will make a determination based on the information before it, that determination will not have the benefit of hearing from others who may have a different perspective on events. As such, a finding by the IRP does not carry the weight of a finding by an investigative process and as such should not be interpreted as such or as a finding of fact. Rather, it is a finding that based on the information before it (which is by its nature only a partial picture), the IRP considers that the individual has, on the face of it, sufficiently demonstrated their position for the purpose of this Healing Process, albeit it is recognised that a full investigative process may have reached a different conclusion.
When considering if (and if so how much) financial payment to recommend, the IRP will be guided by the Healing Principles when applying the following scale and the expectation is that most cases will fall within Core Levels 1 to 3:
Core Financial Payment Levels 1 to 3
- Level 1: £500 to £5,000:
- Harm: To recommend financial payment in Level 1 the IRP must find that the information available to it sufficiently demonstrates that the individual has suffered harm as a result of the culture in NHSH and that: harm has been incurred over a short or medium term duration; there have been occasional or sporadic instances of harm; and/or there have been systemic failures.
- Impact of harm: To recommend financial payment in Level 1 the IRP must find that the information available to it sufficiently demonstrates that there is or has been a detrimental impact on the individual’s life.
- Supporting information: May be testimony from the individual of the medical and other impact that the harm has had and/or is continuing to have on them but could include further information.
- Level 2: £5,000 to £15,000:
- Harm: To recommend financial payment in Level 2 the IRP must find that the information available to it sufficiently demonstrates that the individual has suffered harm as a result of the culture in NHSH and that: serious harm has been incurred; harm has occurred over a longer term duration; there have been numerous instances of harm or one particularly serious instance; there have been serious incidents of harm; and/or there have been serious or repeated systemic failures.
- Impact of harm: To recommend financial payment in Level 2 the IRP must find that the information available to it sufficiently demonstrates that there is or has been a significant detrimental impact on the individual’s life.
- Supporting information: Given the financial payment sums available in Level 2, the IRP will make a recommendation for such a payment if it has been provided with sufficient testimony and supporting information of both the harm incurred and the impact it has had on the individual. This may include medical information from a GP or specialist; a harm impact statement from the individual (and/or another party such as a colleague or family member) addressing all of the points set out above; and supporting documentation as applicable.
- Level 3: £15,000 to £30,000:
- Harm: To recommend financial payment in Level 3 the IRP must find that the information available to it sufficiently demonstrates that the individual has suffered very serious harm as a result of the culture in NHSH and in particular that: very serious instances of harm have been incurred; serious harm has been incurred over a significant period; there have been repeated instances of serious harm or one extremely serious instance of harm; and/or there have been serious and repeated systemic failures.
- Impact of harm: To recommend financial payment in Level 3 the IRP must find that the information available to it sufficiently demonstrates that the impact of the harm incurred is serious, there is an ongoing significant detrimental impact on the individual and that the individual is likely to face challenges in making a full recovery.
- Supporting information: Given the financial payment sums available in Level 3, the IRP will make a recommendation for such a payment if it has been provided with sufficient testimony and supporting information of both the harm incurred and the impact it has had on the individual. This may include medical information from a GP or specialist; a harm impact statement from the individual (and/or another party such as a colleague or family member) addressing all of the points set out above; and supporting documentation as applicable.
Additional Financial Payment Levels 4 and 5
As explained above, the majority of cases where a recommendation for financial payment is made, will fall within the Core Levels 1 to 3 above. However, the IRP may make a recommendation for Financial Payment within Additional Levels 4 and 5 where it considers it appropriate in all the circumstances. It is anticipated that recommendations at the Additional Level 4 will be rare and Level 5 will be exceptionally rare:
- Level 4: £30,000 to £60,000:
- Harm: To recommend financial payment in Level 4 the IRP must find that the information available to it sufficiently demonstrates that the individual has suffered exceptionally serious harm as a result of the culture in NHSH and in particular that: exceptionally serious instances of harm have been incurred; exceptionally serious harm has been incurred over a significant period; there have been a significant number of repeated instances of exceptionally serious harm or in rare cases one extraordinarily serious instance of harm; and/or there have been exceptionally serious and repeated systemic failures which were not corrected despite concerns being raised at the time by or on behalf of the individual.
- Impact of harm: To recommend financial payment in Level 4 the IRP must find that the information available to it sufficiently demonstrates that the impact of the harm incurred is exceptionally serious, has an extremely detrimental impact on most or all aspects of the individual’s life and that the individual will face significant challenges in making a full recovery.
- Supporting information: Given the financial payment sums available in Level 4, the IRP will make a recommendation for such a payment if it has been provided with sufficient testimony and supporting information of both the harm incurred and the impact it has had on the individual. This may include medical information from a GP or specialist; a harm impact statement from the individual (and/or another party such as a colleague or family member) addressing all of the points set out above; and supporting documentation as applicable including to demonstrate financial impact.
- Level 5: £60,000 to £95,000 (higher sums may be recommended where the IRP considers compensation in excess of Level 5 appropriate in all the circumstances subject to SG and NHSH Board approval):
- Harm: A recommendation at Level 5 will only be appropriate in the most exceptional cases. To recommend financial payment in Level 5 the IRP must find that the information available to it sufficiently demonstrates that the individual has suffered exceptionally serious and sustained harm as a result of the culture in NHSH and that: exceptionally serious and sustained harm has been incurred over a significant period; there have been an extensive number of repeated instances of exceptionally serious harm; and/or there have been exceptionally serious and repeated systemic failures which were intentional and were made worse after concerns were raised at the time by or on behalf of the individual.
- Impact of harm: To recommend financial payment in Level 5 the IRP must find that the information available to it sufficiently demonstrates that the harm incurred has been potentially catastrophic and that the individual has little or no prospects of full recovery.
- Supporting information: Given the financial payment sums available in Level 5, the IRP will make a recommendation for such a payment if it has been provided with sufficient testimony and supporting information of both the harm incurred and the impact it has had on the individual. This may include medical information from a GP or specialist; a harm impact statement from the individual (and/or another party such as a colleague or family member) addressing all of the points set out above; and supporting documentation as applicable including to demonstrate financial impact.
In some cases, financial payment will be subject to the individual entering into a settlement agreement/COT3 on agreed terms as explained below. As per Scottish Government policy, no individual will be asked to enter into a Non-Disclosure Agreement.
Payments will normally be made within 30 days of approval by the NHS Highland Board or any settlement agreement or COT3 being agreed where applicable.
10.3.2 Re-engagement, Re-employment or Re-deployment
The IRP may recommend that the individual be considered for Re-engagement, Re-employment or Re-deployment as a sole outcome or in addition to any another outcome (including financial payment under 10.3.1).
- Re-engagement means an ex-employee returning to their original role.
- Re-employment means an ex-employee returning to NHSH in a different role.
- Re-deployment means a current employee moving to a different role.
If such recommendation is made it will then be a matter for discussion between the individual and the Director of Human Resources and Organisational Development who will ensure that the recommendation is explored delegating responsibility for action as appropriate subject to the individual’s suitability, skills, retraining requirements or any clinical/registration needs, whether there is an existing vacancy and if not whether there is sufficient justification to create a role for this purpose within NHSH. Where the IRP recommends that NHSH consider Re-deployment for an existing employee, this will be subject to the individual agreeing that they are seeking that outcome. If that outcome is recommended for consideration, there will be no automatic change to the employee’s employment position, and nor will they move automatically into the “Re-deployment pool”. The individual will remain in their current role until such time as Re-deployment may be agreed (if appropriate) in accordance with the NHSH Re-deployment policy.
Where an individual is re-engaged, re-employed or re-deployed the default position is that no backdated pay will be paid, and continuity of employment will not be preserved (as continuity is a statutory construct, legally it is beyond the scope of NHSH to agree to preserve continuity). It will be open to the IRP to recommend that backdated payments are made and/or that NHSH treat the individual as having continuity for the purpose of certain contractual rights if it deems it appropriate in a particular case. Re-engagement, Re-employment or Re-deployment may be subject to COT3/Settlement Agreement and will be in the event that backdated payments and/or continuity of employment for contractual purposes are recommended (see below). In the event backdated payments are recommended and made, these will be subject to applicable deductions for tax and national insurance.
Where recommendations relate to Re-engagement, Re-employment or Re-deployment, the Director of Human Resources and Organisational Development (delegating responsibility for action as appropriate) will take all reasonably practicable steps to deliver the recommended outcome. However, it is accepted that Re-engagement, Re-employment or Re-deployment can have an impact on the existing workforce and as such further consultation and consideration may be required. In the event that Re-engagement/Re-deployment cannot be facilitated, the Director of Human Resources and Organisational Development (delegating responsibility for action as appropriate) will confirm this to the Individual without delay.
Where the IRP recommends that the individual be considered for Re-engagement, Re-employment and Re-deployment the IRP may also make an alternative recommendation which will apply only if Re-engagement, Re-employment or Re-deployment cannot be facilitated.
10.4 Outcome 4: Referral to other process
The IRP may make a recommendation under outcome 4 for current or ex-employees only. Outcome 4 is not available to Expanded Scope Individuals.
The IRP may recommend that the circumstances described by the individual require to be considered via another extant NHS Highland policy (Once for Scotland HR Policy) in accordance with the terms of that process. For example, this could be relevant where the individual considers that a more detailed consideration of the circumstances causing harm is required and that fault/blame should be apportioned as a full investigation of the facts is out with the IRP’s scope. While the NHSH Board will not be provided with the names of individuals where the IRP recommendation is referral to another process, by their nature these are processes that will be managed by NHSH HR and as such, the individual’s name will be known to the relevant individuals in the NHSH HR team and otherwise in accordance with the relevant process and the usual confidentiality provisions contained therein.
The referral could be to a process initiated by and centred around the individual accessing the Healing Process (and as such, the individual would also have the power to withdraw from that process). These processes are only available to current employees. For example:
- Bullying and Harassment (this process is one which the individual can choose to progress or not and is entitled to withdraw from).
- Grievance (as above – in line with the scope of the Once for Scotland policy issues related to values and behaviours would not be dealt with via this policy but via the Bullying and Harassment Policy).
- Ill-health (for example if the individual would benefit from Occupational Health support or other reasonable adjustments).
- Training – this may include training and development for the individual themselves or themed training for organisational learning and development.
Alternatively, it could be a process centred around another employee (and as such, the individual will have less input into how that process progresses and their role within it). Both individuals who are current and ex-employees can request that such a process is commenced:
- Employee Conduct Policy (this process is used if the individual considers that another person’s behaviour amounts to misconduct, and NHSH agrees that the matter merits further consideration. Referral would also have to be made to the Bullying and Harassment Policy, which covers within its scope current employees, as this is the Policy which pre-empts application of the Employee Conduct Policy). In such cases the individual has the right to raise concerns and will be advised if the matter is being progressed under the disciplinary process in respect of another employee, but the individual will not have a right to know the outcome of that process as that is confidential to the accused employee. The individual accessing the healing process may have been the trigger for the disciplinary process commencing but once a process centred around another employee has commenced, it is then a matter for NHSH of how to progress. The individual may be asked to be a witness in that process (and if they are a current employee NHSH may require them to participate). If issues are raised by an ex-employee it will be for NHSH to determine how best to progress these issues in line with the provisions of the relevant extant or Once for Scotland Policy.
- Capability process (as above relating to another employee’s perceived capability not conduct – for example, this could be where it may be considered that training for an alleged bully may be appropriate. This would be progressed by NHSH with the individual named in the normal manner).
Individuals do not have the right to know the outcome of a process centred around another employee. That information is private and confidential to the affected employee. While some outcomes (such as dismissal and demotion) will be visible, it is important to note that there are a range of outcomes which are “invisible”. This can include but is not limited to disciplinary warnings and training.
In cases where concerns are significant enough to merit referral to the police or a regulating body the IRP may recommend that NHSH carry out further investigation into the matter in order to determine whether a referral is appropriate. For example, if an individual raises a concern about professional misconduct, patient care or a potentially criminal matter such as assault.
The IRP may recommend a mediation between the individual and existing (or past) NHSH employees. While the IRP can make this recommendation, NHSH recognises that for mediation to be effective it must be voluntary on both sides. As such, while reasonable steps will be taken to encourage others to participate in a mediation, it will not require existing employees to participate, and nor would it have the authority to require participation from an ex-employee.
10.4.2 Concerns about individuals who have left NHSH
Where concerns have been raised about ex-employees, the IRP (and NHSH) have limited scope to take action. They may recommend and facilitate a mediation. In cases where concerns are significant enough to merit referral to the police or a regulating body the IRP may recommend that NHSH carry out further investigation into the matter in order to determine whether a referral is appropriate.
Where the IRP recommends the use of another process, it will also recommend set timescales for such processes to be progressed within. These timescales can only be departed from with valid justification in line with those policies. This can be helpful particularly where an individual was deterred from pursuing Bullying and Harassment or Grievance due to concerns about the process being protracted.
10.5 Outcome 5: No further action from NHS Highland
It is hoped that in some cases the participation in the Healing Process will have been helpful to the individual and that as such, no further action after the IRP may be required. This outcome would also be appropriate if the IRP considers that the individual has not been harmed on or before 31 December 2019 by the cultural issues related to allegations of bullying and harassment in NHSH addressed in the 2019 Sturrock Report or is otherwise not eligible to participate in or receive the outcome(s) sought via the Healing Process.
It is also recognised that in some cases, an individual may not agree with the recommended outcome of the IRP. There is no further stage of appeal within NHSH. It is important that the IRP takes ownership of decisions and is not seen to be passing that responsibility to others. The only circumstances in which the IRP will defer to another process is where the outcome sought by the individual relates to matters outwith the scope of the IRP which can more appropriately be dealt with via an extant NHSH process.
If an individual wishes to take further action in relation to the underlying harm after receiving the outcome following the IRP recommendation, it will be for the individual to determine if they are eligible to and wish to pursue an application to the Employment Tribunal, Civil Court or other body. Existing employees may also have access to extant NHSH processes (to the extent these have not previously been exhausted). However, as noted above, there is no further stage of appeal against a recommendation of the IRP or the outcome of the Healing Process.
10.6 Status of IRP Recommendations
The IRP’s powers are limited to making recommendations to the Chief Executive (on behalf of the NHSH Board via delegated authority from the Remuneration Committee). The Chief Executive will consider IRP recommendations to be assured that these are made within the IRP’s powers as set out in this guidance and related Healing Process documentation and will present them to the NHSH Board Remuneration Committee for final approval. The Minute of the Remuneration Committee will be presented to the “in committee” session of the Board for noting. In exceptional circumstances as per the guidance there are situations where the recommendations of the IRP will require to be approved by the NHS Board and Scottish Government.
The individual will always be sent a copy of the Outcome(s) as approved by the Chief Executive. The individual will not automatically be sent a copy of the IRP recommendations. However, at the IRP discussion, the individual may make a request that they are provided with a copy of the IRP recommendations along with the Outcome. If an individual does not request the recommendations at this time, they will still be able to make such a request to see their recommendations until the Healing Process concludes.
10.7 Legal claims and use of Settlement Agreements/COT3
In many cases the IRP recommendations will be implemented without the requirement for individuals to enter into a settlement agreement or COT3.
The exception to this will be where an individual is offered and wishes to accept a recommendation under outcome 3 and in all the circumstances of the case the IRP, CLO or NHSH considers it appropriate to make that recommendation conditional upon the individual entering into a binding settlement agreement or COT3 on mutually agreeable terms whereby the individual waives their right to pursue a legal claim(s) in respect of the specific matters to which their situation relates, including any potential employment, personal injury or other claim. This may arise in circumstances where there is a live or prospective claim which would not be time barred in the Employment Tribunal or the civil courts. As noted above, in the event that the IRP has recommended Re-engagement or Re-employment together with backdated pay and/or the preservation of continuity for contractual purposes, this recommendation must always be made subject to the individual entering into a binding settlement agreement or COT3 on mutually agreeable terms.
In all cases, in the event the individual receives a financial payment, and also pursues a legal claim arising out of or connected to the same or similar circumstances, NHSH is entitled to disclose the financial payment during proceedings and request that it be offset against any compensation that may be awarded on just and equitable grounds. NHSH may similarly offset such financial payment against any sums which may be offered in a future settlement agreement, COT3 or otherwise.
In the event that an individual accesses the Healing Process having already received a compensation payment from NHSH via settlement agreement, COT3, legal claim or otherwise, the IRP will be entitled to offset any sums previously paid from any financial payment that it may recommend.
The Healing Process is voluntary and confidential. However, it is not carried out on a “without prejudice” basis. That means that NHSH and the individual are entitled to rely on the content of what is said, the outcome, and any other relevant information in defence or pursuit or any legal claims.
As has been previously stated, the Healing Process is designed to focus on Healing. While the IRP will make determinations based on the information presented to them, that information will be taken from the individual’s perspective only and as such is by its nature limited and incomplete. The usual standards of evidence do not apply. As such, any recommendations or other statements from the IRP must be understood in that context. They should not be relied upon as an admission of fault or liability in any particular case, as it is recognised that a process which required evidence from all relevant parties may have made a different determination. Any IRP recommendation or statement is not a finding of fact or blame and cannot be relied upon as such in any other process.
10.8 Proactive steps by IRP
The IRP’s purpose is to aid healing on an individual level. As such, in its recommendations it will be guided by the preferred outcomes proposed by the individual and will focus its attention on those routes. The IRP is not precluded from proactively suggesting alternative outcomes to an individual to consider. It may be that the individual has indicated that their preferred outcome is financial payment. In such cases the individual should consider also including an alternative proposal as it may be that the IRP determines that financial payment is not appropriate/available in their case but another outcome may be. The IRP will not make a recommendation for an outcome relating to that individual if the Individual does not confirm that they wish that outcome to be considered. For example, if the individual is not interested in mediation, the IRP will not recommend mediation even if the IRP considers that it may assist in healing. This process is led by the individual and the IRP will respect that individual choice.
However, the IRP may become aware of matters which it considers are significant enough that they should be addressed by NHSH even if this has not been requested by the individual. The IRP will in such circumstances be entitled to proactively raise concerns with NHSH. For example, this could occur if a serious conduct or clinical negligence issue is raised.
It is anticipated that the IRP may become aware of common themes arising as the Healing Process progresses. The IRP will decide each case on its own merits. The focus of the IRP is on harm felt by an individual and aiding healing for that individual, others affected and NHSH taking into account the Healing Principles. Underlying themes will be relevant to the Final Report of the IRP explained below.
10.10 Final Report of IRP Learnings
On conclusion of the Healing Process, the IRP will prepare a Final Report of their Learnings and may also be asked to provide interim reporting. The aim will be to report on the process itself, and any themes which arose. This report can make further recommendations to NHSH. It may also be useful to NHSH in informing any future process changes. The details of the required reporting will be determined by NHSH and/or the Scottish Government.
10.11 Record Keeping
We understand that privacy and security of personal information will be extremely important to participants in the Healing Process.
As part of the Healing Process, your personal information will need to be processed in accordance with the Healing Process Privacy Notice (available at [INSERT LINK]). The privacy notice explains how personal information will be collected during the process, what will be done with that personal information and who that personal information will be shared with. This privacy notice will apply to all of those individuals who access the Healing Process and will cover all stages of the Healing Process from their initial engagement with CMP onwards.
At all times individuals will have the ability to withdraw from the Healing Process or withdraw permission for their personal information to be processed in the Healing Process (other than as required by law or set out in the Privacy Notice). However, individuals should be aware that if they refuse or withdraw permission for their information to be processed as part of the Healing Process, they may be unable to move forward with the Healing Process or the options available to them through the Healing Process may be restricted.
If personal information is transferred to a third party as part of the Healing Process then that third party’s privacy notice may govern the participant’s engagement with that party and further information will require to be given to the participant at that stage. For example, if a participant is referred to Validium then Validium will act as a data controller for the purposes of providing services to the participant and so Validium’s privacy notice will apply to Validium’s processing of personal data in the treatment of that participant. Our aim is to be as clear as possible with participants on how their information will be used.