Dear David
I apologise for the length of this letter but it seeks to address a crucial issue for the NMC – your role in any future recruitment to the post of Chief executive of the NMC.
You have been the Chair of the largest healthcare professional regulator for four years. In the face of well evidenced protected disclosures from a longstanding employee you were obliged to commission yet another report on culture – the fifth in five years. In addition, a second senior whilst blower raised concerns with you and it would appear you and your council failed to be curious enough to listen and take action
The RISE report you commissioned states (P.8) that:
“as far back as 2008, a special report for the Department of Health investigated allegations of racism and bullying” and adds that “Additional reports around race equality, inclusion and the NMC investigations team in the last few years have shone a similarly harsh light on a culture of fear inhibiting honesty and learning, and which also normalises a tolerance of race inequalities. “https://www.nmc.org.uk/about-us/independent-reviews/
In particular that report notes (P.112) that:
“The origins of this review lie in claims of a toxic culture made by a whistleblower last year. The reported claims of racism, people being afraid to speak up and nurses accused of serious sexual, physical and racial abuse being allowed to keep working on wards were all repeated to us on multiple occasions. Everything the whistleblower documented was corroborated and we spoke to many others that had similar experiences.”
The report pays significant attention to recruitment and career progression and states (P.46):
“Ethnic minority staff recounted sitting on recruitment panels where colleagues expressed racist views towards the candidates. “Look at the rubbish we’ve got today,” one colleague is alleged to have said as they trawled through a list of foreign sounding names. “How are we supposed to appoint anyone from this garbage?”
“We spoke to multiple black and ethnic minority workers who had left, in part, because of this – and, worryingly, they had all gone on to get better jobs and argued that their abilities had been overlooked at the NMC.
Staff told the report that:
“nepotism is rife. There are clear ‘favourites’ among senior managers. Incompetence at a managerial level overlooked. Poor recruitment policies. Too much of a reliance on temporary contracts.”
“Some hiring managers find it difficult to trust someone who doesn’t look or think like them. There is an overriding perception that certain people, particularly from Black and ethnic minority groups are just not good enough for certain positions, so I have found it difficult to get the exposure to be seen to belong in certain spaces.”
Not surprisingly, the report notes that the Executive Team is all white and that:
“There is a noticeable drop in the representation of black minority ethnic staff in higher grades whilst “applicants from black ethnic groups are hired at almost half the rate in comparison to white applicants.”
“This sense of humiliation even extended to some black minority ethnic employees being told that they were on a list of people that could not be promoted past a further level.”
Appointing an interim CEO in June 2024
The senior leadership (including yourself as the Chair) were well aware that a report they had been obliged to commission was due to report in July 2024. You had a pretty good idea what the report would say, not least because you were obliged to authorise a second, even more expensive report, into serious allegations, notably about racism, that a whistleblower had made and which were reported widely https://tinyurl.com/5e87uznn
A response to our FOI about the appointment explains what you personally did. (Quotes in italics are verbatim from the FOI response.)
You decided not to advertise the interim post of CEO at all even though it was very likely to last at least six months
Instead, you “reached out to leaders in other regulators, NHS and the Civil Service networks” and they were invited to provide a CV and if suitable, were invited to an initial conversation with the Chair who shortlisted to interview”.
It is unclear what involvement if any the NMC joint Chief People Officers played in this appointment as they are not mentioned anywhere in the FOI response so I have to assume they either were not involved, or they were and went along with a process they would have known was prone to bias. I say “would have known” because academic research is absolutely clear they reliance on informal recruitment, reliance on CV’s and reliance on informal chats with a single white man who is shortlisting alone is a recipe for affinity bias and a case study in “tap on the shoulder” recruitment. If you are interested I have written at length summarising the research in No More Tick Boxes (2021) published by NHS East of England https://www.england.nhs.uk/east-of-england/wp-content/uploads/sites/47/2021/10/NHSE-Recruitment-Research-Document-FINAL-2.2.pdf
Given what you and the CEO must (absolutely must) have known was the tenor of the RISE report – which NMC senior management had seen by mid-June well before any interview process took place – it is quite extraordinary that you adopted such an approach.
You were then a member of the three-person interview panel. As the sole shortlister (the other two panel members apparently had no role in the shortlisting and you by reason of this and your seniority would have been the most influential member of the panel.
Andrea Sutcliffe’s resignation was made public on May 22nd. It was presumably known to you as the Chair before then. The announcement about her interim successor as made on June 27th – five weeks and one day later. After the resignation of your appointee, you then went ahead and appoint a member of the SMT following in her words a “30 second phone call” as interim CEO so clearly you could have spent a little longer and easily advertised the post.
Due diligence on the Richard Hastings Employment Tribunal and related matters
We asked “In the recent appointment of the interim CEO, please state who conducted the due diligence into candidates and whether the successful candidates track record at Kings College Hospital NHS FT was identified by it or was disclosed in interview?”
The FOI response stated “During the recruitment process, we asked Dawn about the employment tribunal. We also considered her leadership and equality, diversity and inclusion expertise.”
Ann Keen and I had already set out in detail some of our concerns about the suitability of Dawn Broderick in a blog entitled “NMC: you have some serious explaining to do”. https://www.linkedin.com/pulse/nmc-you-have-some-serious-explaining-do-roger-kline-krvbc/
In it we summarised the scathing criticisms of the role of the Trust, and specifically the HR processes which the Employment Tribunal (italics from the ET judgement) found that:
the investigation was “fundamentally flawed” due to unconscious racial bias.
opportunities to collect further evidence to support Hastings’ claims of innocence were repeatedly missed and that Hastings – who was of African Caribbean origin – was treated less favourably than a white counterpart would have been. Investigators were said to have made up their minds about his guilt and only pursued evidence which would support this.
Racism was widespread and not considered in the Trust’s response to Mr Hastings’ allegation. It noted that BME staff were 2.75 times more likely to
The Trust provided no credible reason for failing to comply with policies, failing to investigate the Claimant’s evidence of race discrimination and failing to conduct a fair and non-discriminatory process.
The Trust’s witnesses made no reference to their own Dignity at Work Policy and Equal Opportunities Policy which was not produced until the fourth day of the hearing after the Tribunal had requested sight of it. These documents were highly relevant to the issues in the case and the latter policy applied to contractors.
HR oversight was poor including failing to maintain proper records of the disciplinary and appeal hearing in breach of the EHRC Code of Practice at paragraph 17.4; and stating “appears to be an unfortunate coincidence that all the minutes of the hearing and appeal are missing and neither manager chairing the hearings took minutes during the hearing, we raise an adverse inference from this*. (Para 367)
"This was a large employer, with policies to ensure that disciplinary hearings were conducted fairly and equal opportunities policies to ensure that allegations of discrimination were investigated, even where they were made in the course of a disciplinary hearing. These policies were not followed and there was no explanation why this was the case. The Respondent also had the benefit of a large human resources department (led by Mrs Broderick) but the investigation followed was one sided and inadequate and the minutes of the hearing and appeal were lost.” (Hastings Para 399).
This was not an isolated example of the failure to tackle racism at Kings CH NHS FT whilst Dawn Broderick was Chief People Officer from 2015-2020. The Trust’s own data shows that whilst almost half the staff employed were of BME heritage, the SMT and Board were entirely white and that
The relative likelihood of White staff being appointed from shortlisting worsened from 2016 to 2019 from a very poor 1.84 times to a shocking 2.41 times BME staff being appointed from shortlisting– much worse that benchmark comparators
The relative likelihood of BME staff entering the formal disciplinary process compared to white staff improved from a shocking 2.25 to a very poor 1.84 times but the improvement had stopped in 2017 – and was much worse that benchmarked comparators
The percentage of BME staff experiencing harassment bullying and abuse from fellow staff and managers rose in that period from 31% to 35% - again very poor
The percentage of BME staff believing the trust provided equal opportunities for r=career progression and promotion dropped sharply in this period from 87% to 60% (data from the Trust’s report https://www.kch.nhs.uk/document/workforce-race-equality-standard-report-2017-2019/
Given that you as Chair knew that the imminent RISE report would highlight the NMC’s own drastic failings on racism and bullying, it is difficult to understand how due diligence enabled you to decided Dawn Broderick was an appropriate person to lead the response to the NMC’s challenges.
It is difficult to believe that due diligence would not have found all this information very easily – it is all in the public domain – and indeed Mr Hastings’ case was referenced several times in the widely publicised Too Hot To Handle report https://tinyurl.com/3jsvb4sr
To say that her return to healthcare leadership as Interim Chief Executive of the Nursing and Midwifery regulator is an appointment that raises questions is to put it mildly. The least the NMC can do is to explain why due diligence did not flag these issues as potential obstacles to the appointment – or if they didn’t, to explain why.
If Dawn Broderick did acknowledge the serious failing on racism at Kings on her watch why was she appointed given the challenges the NMC face?
If she didn’t acknowledge the failings, then surely you should at least have put the appointment on hold whilst they were investigated?
The Council failed in its role
By the time the Council was asked to approve (or not approve) the appointment, the issues raised by Dawn Broderick’s role in the ET were well known. No one at NMC Council seems to have raised any questions about the suitability of her appointment so it seems important to ask whether you specifically alerted them to the issues summarised above?
Bizarrely, in breach of your own governance, never mind good practice, Dawn Broderick started work before Council was due to formally approve her appointment on July 3rd. I presume Did you personally approved that arrangement?
We asked
“What concerns, if any, were raised by the DHSC about this appointment once is become public knowledge that there were concerns about the suitability of the appointment given the landmark race discrimination case at Kings Hospital NHS FT?”
The FOI response was:
“We gave DHSC advance notice of Dawn’s appointment and her decision to withdraw”.
It is not clear from that opaque response if you alerted DHSC of the concerns about Dawn’s suitability given what you would have known about the importance of racism for this appointment. Either the DHSC were told about the specific concerns, or they were not. It seems rather important to know this given that they were advising the Minister.
It is not clear if your avoidance of the question is because you failed to alert them or that you did alert them and don’t wish to embarrass DHSC given that the week you would have told them of Dawn’s resignation after the furore about racism was the week that ushered in a new Secretary of state with different views on both whistleblowing and bullying to his predecessor.
Fair and effective recruitment and the NMC leadership
I have not touched on a range of other relevant issues – notably the extent to which you were personally alerted (or were not) to the more than one serious protected disclosure to which you may (or may not) have responded with the speed and seriousness they self-evidently required.
On the issue of racism, your responsibilities are clear. The NMC EDI Plan states
“Tackling discrimination and inequality, celebrating diversity and promoting inclusion, including making sure that our processes are fair for our registered professionals and colleagues, is a priority in our 2022—2025 corporate plan.“ https://www.nmc.org.uk/globalassets/sitedocuments/edi-docs/edi-plan.pdf
The catastrophic failings identified in the RISE report are compounded by your own failing to ensure a fair and effective process for the appointment of Dawn Broderick at the very moment the RISE report was published. The RISE report notes (P.8)
“A whistleblowing report in 2019 and a review of the culture in specific directorates in 2020 unearthed even more failings, noting that staff often did not raise concerns because they were fearful of repercussions and apathetic about things ever changing.
“Additional reports around race equality, inclusion and the NMC investigations team in the last few years have shone a similarly harsh light on a culture of fear inhibiting honesty and learning, and which also normalises a tolerance of race inequalities.”
“The substance of these reports weighs heavy on our review. When studying them, we have also noted the repeated response from the NMC is a promise to learn lesson”
A second review, by Ijeoma Omambala KC, has been considering botched investigations highlighted by one whistleblower, and is due to be published in the Autumn and will no doubt come to similar conclusions as the RISE report.
The RISE report notes the absence of change and the repetition of avoidance and denial. Learning and improvement should normally be the response to poor culture. In this case the culture has been so systematic, long lasting and leaders actively resistant to change that those responsible must surely move on, or be moved on, so that the NMC has a leadership that can demonstrate they themselves are Fit to Practise.
Crucially, if you remain in post you will be chairing the shortlisting and appointment process for the new permanent CEO which is due to start in September. That would be widely regarded as absolutely unacceptable given the evidence of your central role in the botched appointment of the external interim CEO.
There are numerous reasons why you should step down but the possibility of your leading that appointment is a step too far. You have demonstrated precisely the patterns of “tap on the shoulder” that came through loud and clear in the RISE continue at the NMC.
For that reason alone, I hope you will now consider your position.
Roger Kline OBE FRSA
Research Fellow, Middlesex University Business School
Nominated 2021, 2022 and 2024 as one of the top 30 UK HR influences by HR Magazine
Comments