Dignity at work: Policies and legislative framework

Introduction

The National Health Service (NHS) is the third largest public sector employer in the world. There are 1.6 million employees who provide care for the population of the UK. The NHS in England forms the biggest part of the health service in the UK with more than 1.3 million staff which includes over 40,000 general practitioners (GPs), 351,446 nurses, 18,576 ambulance staff, and 111,963 hospital and community health service (HCHS) medical and dental staff. In addition, there are other non-clinical staff who play an equally important role in the functioning of the NHS.

The NHS is currently undergoing major reforms and has become a focus of political debate. Many concerns have been raised about the pressures under which the staff have to carry out their duties, and links from this to patient safety risks. Reports such as the Francis review into Mid Staffordshire, ¹ the Berwick review into NHS patient safety, ² and the Keogh review to urgent care services ³ all highlight the need to empower staff to raise concerns about patient safety. Many NHS Trusts have found themselves in focus for not being able to provide a safe working environment for their employees when they have raised concerns about the practices in their Trust. ⁴

Concerns about bullying and harassment in the NHS and NHS culture have been prevalent for some considerable time and it has been named ‘the silent epidemic’. ⁵ There are many reports that highlight the extent of bullying and harassment in the NHS. A 2014 GMC report ⁶ found that 1 in 10 doctors reported to have been subjected to bullying and harassment in the workplace.

The 2014 national NHS staff survey indicated that while more than 90% staff knew how to raise concerns about patient safety only 68% would feel secure in doing so about unsafe clinical practices and only 57% would feel confident that their organisation would address their concerns. ⁷

These concerns led to the review into whistleblowing ⁸ by Robert Francis QC, who recommended a Duty of Candour to make it a legal duty for all staff to speak up against undesirable practices in the NHS which compromise patient safety, respect, and dignity.

The review also recommended key tenets of a culture that promotes raising concerns:

A just culture

Sir Robert Francis QC concludes: ‘I am in no doubt that bullying is a problem that urgently needs to be addressed. It has implications for patient safety, for staff morale, for performance, and for staff retention.’

Traditionally the staff well-being and issues such as bullying and harassment are considered to be the domain of the Human Resources (HR) function. However, the author believes that invariably the situation is quite advanced and entrenched at the point of the HR intervention. Ideally, the managers at all level should know and understand the consequences of behaviours and culture in their teams to ensure that the concerns about bullying and harassment are addressed early on to prevent a lengthy and time-consuming process to deal with such situations. Disgruntled employees and tired staff can have significant impact on recruitment and retention in the NHS thus exacerbating the already stretched resources. Low staffing levels are a significant risk to patient safety and pose a potential clinical risk to the patients cared for by them.

This first of a two-part article highlights the policy and legal context of dignity at work in the NHS organisations. A subsequent article will identify the key determinants of ensuring a bullying free culture and the challenges for the NHS organisations in implementing these.

Overview of legal and policy context

Every individual who comes into contact with the NHS and organisations providing health services should always be treated with respect and dignity, regardless of whether they are a patient, carer or member of staff. This value seeks to ensure that organisations value and respect different needs, aspirations and priorities, and take them into account when designing and delivering services. The NHS aims to foster a spirit of candour and a culture of humility, openness and honesty, where staff communicate clearly and openly with patients, relatives and carers. (NHS Constitution)

All NHS staff are expected to work towards this value and exhibit behaviours that promote the NHS as a safe place to receive and provide care. West et al. ⁹ found that in trusts where staff felt able to contribute to the improvement of work the infection rates went down considerably. West also argues that having an unsafe work environment where staff feel pressured or where staff are subject to bullying, harassment, or discriminated, there is a likelihood of negative impact on patient outcomes.

Hughes and Clancy ¹⁰ particularly highlight the role of nurses in enhancing patient safety and advocate adequate support for them in the work environment. There is further evidence that factors such as working hours and empowering work environment have a direct impact on patient safety and patient outcomes.^11–13

This has led to the concept of ‘Dignity at Work’ which protects and enables the staff to be treated with dignity at their workplace.

Dignity at work

Dignity at work involves ensuring that staff are valued and counted in their work environment. It is to encourage staff and employers to build a workplace culture that promotes respect for all. Under this philosophy, no staff member should be subjected to bullying and harassment in any respect. However, due to the subjective nature of the interpretation on both sides of the perceived behaviours, this can pose challenges when addressing these concerns.

Bullying

According to the NHS terms and conditions of services bullying is defined as: ‘The unwanted behaviour, one to another, which is based upon the unwarranted use of authority or power’. ¹⁴

The BMA defines bullying as where an individual or group abuses a position of power or authority over another person or persons that leaves the victim(s) feeling hurt, vulnerable, angry, or powerless. ¹⁵

Bullying includes but is not limited to:

Aggression, including threats, shouting abuse and obscenities and shouting at people to get work done

Harassment

This can be defined as ‘any behaviour, whether verbal, non-verbal, or physical, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, humiliating or offensive environment for that individual or group’. ¹⁴ Additionally, the NHS terms and conditions of services (section 32) defines harassment as ‘any conduct based on age, gender, pregnancy or maternity, marriage or civil partnership, sexual orientation, gender reassignment, disability, HIV status, race, religion or political beliefs, trade union or other opinion, national or social ¹⁵

Unlawful victimisation

A related concept is unlawful victimisation that occurs when a person is treated less favourably because they have asserted their rights, perhaps through making a complaint, supporting a claimant, or raising a grievance.

Legal framework relating to bullying and harassment

The key legislation supporting the prevention of harassment is contained in the Protection from Harassment Act 1997. Intentional harassment is also considered unlawful under the Criminal Justice and Public Order Act 1994 and is deemed a criminal offence.

The Equality Act 2010 prohibits discrimination on grounds of age, sex, religious beliefs, ethnicity, disability, gender reassignment, marriage or civil partnership, pregnancy or maternity and sexual orientation.

Whistleblowing protection is afforded by an amendment to the Employment Rights Act 1996 (made by the Public Interest Disclosure Act 1998) and provides protection to those at work (the definition of those covered can be complex but certainly includes employees) who have made ‘protected disclosures’ against being treated in a detrimental way or harassed by their employer or a fellow employee. There is no length of service requirement to advance these claims. ¹⁶

Finally, the Employment Rights Act 1996 provides that if an employee was forced to resign due to bullying then they may claim unfair dismissal if they have sufficient service. They can do so if they can prove that their employer was involved in bullying or did not take steps to prevent it.

All regulated healthcare professionals have a professional duty to raise concerns to prevent avoidable harm to patients. This has now been strengthened by the Statutory Duty of Candour. ¹⁷ Further guidance from the professional regulators such as the Nursing and Midwifery Council (NMC) and the General Medical Council (GMC) is being developed to embed these into practice. The guidance calls on NHS employers and the leaders to encourage an open and honest culture and enable staff to report poor practice. Anyone obstructing staff in being open would be considered to be in breach of the code of professional standards.

Similarly, the NHS Terms and Conditions of Service provide expressed contractual obligations relating to whistleblowing (section 21) and dignity at work (section 32). Anyone in breach of these obligations may be subjected to disciplinary proceedings.

Fit and proper person test

Alongside the statutory Duty of Candour, NHS bodies are also required by the same Act ¹⁸ to ensure that their board level directors or equivalents are fit and proper to carry out their role. These regulations require the NHS provider to demonstrate to the regulator Care Quality Commission (CQC) the suitability of its board level personnel and that the test has been applied properly. One of the key requirements of the test is that the directors must not have been responsible for or be anyway involved (directly or indirectly) in any misconduct or mismanagement relating to the provision of a regulated activity as defined by the CQC.

Organisational responsibilities

According to the Advisory, Conciliation and Arbitration Service (ACAS), ¹⁹ there are clear responsibilities for the employers to promote anti-bullying and harassment policies and create a culture in the organisation that promotes staff to develop their full potential. These include:

A clear policy highlighting the commitment and intent of the organisation

Responsibilities for managers and supervisors

It is important that managers practice behaviours that respect and promote dignity of staff. They also need to be proactive in identifying any behaviours or practices that may be construed as bullying and harassment and address these efficiently and effectively as soon as possible. In the event of a complaint of bullying and harassment, it is their responsibility to ensure that there is no victimisation of the individual during and after the process.

The NHS Terms and Conditions of Service ²⁰ provides a contractual right and duty to raise concerns. The NHS Constitution ²¹ advises that staff should aim to raise concerns and report to the appropriate authority any incidents of malpractice and wrong doing at work that they witness.

Guidance for staff and employers

There are many sources of guidance for NHS employees and employers which give detailed information on how to promote dignity at work. These include:

Health and Safety at Work Act (1974) guidance on bullying and harassment leading to workplace stress.

Regulatory bodies

There are several external regulatory bodies that have the remit of ensuring that NHS is a safe place to receive care and work.

Other bodies

Recent initiatives in raising concerns

In recent years, there have been many initiatives set up in the NHS to support staff who wish to raise concerns. Some of these include:

NHS Employers launched a ‘Speaking up charter’ in 2012 to promote an open culture and transparent practices in the NHS. It advocates continuous review of policies and practices regarding bullying and harassment to support the staff who wish to raise concerns

Conclusion

There is compelling evidence that if staff are treated with dignity and respect, the quality of care for patients is better. It is important that the NHS organisations identify and nurture this interdependence to provide high-quality safe care that maintains dignity for patients at all times.

As the article above demonstrates there is a strong policy and legislative framework that supports dignity for staff and patients. Many NHS organisations are already implementing some of these initiatives to promote a culture of openness amongst their staff. A key characteristic of a learning organisation is that it encourages its staff to identify areas of poor performance and enables them to speak out when they have concerns. Strong organisations are those that adopt genuine reflective learning to challenge and change.

Whether staff are able to use the available channels to raise concerns is dependent on many factors beyond the actual concern. It is vital that a culture of free and open dialogue is fostered with the aims of protecting patients and also supporting staff in raising issues of concern with the confidence that their dignity and respect will be maintained. These factors will be considered in the second part of this article.