Employers Are Afraid to Obey the Law

Another week and another major public sector employer decides to publish a policy that will almost certainly get it into hot water and may be unlawful. You won’t be surprised to read that yet another NHS Trust has released an EDI (Equality Diversity and Inclusion) policy that allows biological men to use female lavatories and changing facilities.

Sex Matters and the Telegraph were sent copies of the culprit’s EDI Policy. This time it is Guy’s and St Thomas’​ NHS Foundation Trust. Is the HR Team paying any attention to what is happening in Fife at the moment? Barrister Naomi Cunningham is leading the legal team fighting the persecution of Nurse Sandie Peggie by NHS Fife where the tribunal has now been postponed to July as it’s overrun. This is unfortunate as not only does it delay justice for Sandie Peggie but it also means that the 600 odd plus NHS Trusts out there won’t have been given a policy steer when the tribunal in Fife inevitably rules against the trust.

Guy’s isn’t alone. NHS Scotland released guidelines last week which are steeped in Stonewall’s spurious claim that using preferred pronouns and shared bathroom policies are “in our equality laws” when they are not.

So the big question here is: why the hell are HR Departments publishing policies which are inherently unlawful?

HR departments at NHS trusts and healthcare organisations are large, complex departments by default. The nature of healthcare and medicine means a minefield of patient and staff rights must be sensitively handled. Behind the scenes in any hospital a great deal of work goes on ensuring everyone is insured and qualified to undertake medical procedures on patients. As a result, such healthcare organisations have highly specialised HR and legal professionals working for them. They certainly have the inhouse expertise to take a bit of legislation like the Equality Act 2010 and ensure the organisation is acting within the law.

At least you’d think they do. So why on earth are they continuing to make these appalling decisions? Why are none of the qualified professionals who actually understand the law not putting themselves out there to stop this? Who is making the decision to write and publish these policies?

Well, I’ve been looking into this for some time now. If you want to stop organisations doing something you have to find out why they are doing it in the first place. It is my conclusion that what is being revealed is a culture of fear within the HR and management teams which is exacerbated by an utter failure of governance to address these issues.

As I said above, you’d have thought, given that the NHS Fife case is pretty much dominating the conversation in the HR industry at the moment, that another employer would be very careful here, or at least wait for the tribunal to make its decision before deciding which way to jump. So why has Guy’s and Thomas’s decided to do this now?

Well, I think we have an answer: “The trust’s transgender policy, seen by the Telegraph, was drawn up by equalities officers and LGBT members of staff.”

This is revealing on two levels. Firstly, the policy was drawn up by “equalities officers”. NHS Fife’s policy was also drawn up by an equality officer, in their case the head of EDI who, until she was appointed to that position, had no demonstrable experience in writing such policies or in employee relations and equality law: she’d been a laboratory-based scientist before deciding, predictably in the wake of George Floyd’s death, to move into EDI. I have already written at length, here in the Daily Sceptic, about how that incident saw a huge increase in the number of EDI staff hired in the UK and that this huge demand for staff and training saw a drop in quality of both. So desperate were HR Directors (under huge pressure at the time due to Covid, lockdowns, staffing levels, distancing, sickness management and furlough) to hire EDI teams that they essentially lowered the bar and appear to have hired anyone who could demonstrate a knowledge of EDI – or at least knew the patois. Hence activists were hired. Activists with agendas and with little in the way of understanding of their legal obligations as employers.

Secondly, we have Employee Advocacy Groups. Again in the wake of George Floyd many employers set up LGBT and BAME and Disabled Advocacy Groups to give such employees a voice. This is always dangerous because it invariably ends up being populated by hot heads who again have an agenda rather than balanced views. It is even more dangerous when HR Directors, keen to be seen as ‘inclusive’ and ‘hearing your truths’, tasked such groups to come up with policies and training. It was akin to saying: “Monsieur Robespierre, could you and your chaps at the Committee of Public Safety come up with some ideas around how we could improve political cohesion in the Republic de France?”

It doesn’t take a degree in Employment Law or Management to see the issue here: such groups enthusiastically drew up increasingly radical policies and training. Dissenting voices were silenced, as they always are, in the passionate rush to change the world. At the time I was working with a major private healthcare company and the moment the HR Director saw what was happening she quietly and carefully wound down the involvement of these groups. Because, of course, setting policies and training in organisations is a specialist job which requires a deep understanding of the relevant legislation. The company I was working for was a PLC which means that everything you do is overlooked by the Stock Exchange and governance is very high on the agenda. (Governance in its old definition: follow the law, don’t screw anything up.)

So the question again is: how the hell has this happened and why does it keep happening?

You see the really odd thing here is that when an employer has obviously broken employment or equality law, the last thing you do is to decide to fight it in an Employment Tribunal. It’s best practice to shut it down as quickly as possible, settle with the aggrieved employee before it gets anywhere near the steps of a tribunal and then work out how the heck it happened and make changes to ensure there is no repeat. So why are so many of these cases getting to the point where the employer is ignoring (or hasn’t asked) internal specialists, is ignoring its own legal counsel and then expressing their shock and horror when the tribunal finds that it has persecuted and discriminated against its own employees?

Yes, there is a core of activists in many of these organisations who have been able to secure the ear of senior leadership. Many of them were recruited as above and had the zeitgeist in our senior management teams been different, they would be unlikely ever to have secured the positions they were appointed to. This is, as noted, why we see such policies and training being written and published. But why does no one challenge them?

Well, in short: fear. And that fear is not unfounded. There is a reason why I used the hyperbolic allegory of the Reign of Terror earlier in the article. Because if you dissent, if you speak out then you are likely end up, at best, side-lined at work, or at worst, fired for doing so. Yes the sackings are usually unlawful, yes, there is recourse to Employment Tribunal justice, but that can take years and in those years, families grow up, cars and homes are repossessed, employment opportunities evaporate as rumours that you are ‘problematic’ spread.

We all like to think that we are courageous in the face of calling out injustice and whistleblowing on malpractice but the reality is that most of us are not. Speak out and even if you survive the inevitable backlash, your career will wither. This even impacts those of us who leave the corporate world to speak out. When we launched Fair Job last year, we were roundly acclaimed by the vast majority of people we spoke to that ‘it was badly needed’ and a return to back-to-basics HR: depoliticising the workplace was going to be a winner. But the reality is that when you asked those voices, many of whom were senior leaders in major employers, if you could come and brief them on your solution, excuses were made, coughs and throat clearing were heard and the door was firmly closed in our faces. This presents a problem because in speaking out, in writing about these problems, in launching Fair Job, my business partner and I are now effectively unemployable in the corporate world, despite our experience and skills being desperately needed.

And you see it is with the leadership of these employers where the ultimate responsibility lies. Sir Peter Schofield, Permanent Secretary of the Department of Work and Pensions, was in charge when the DWP introduced radical and draconian EDI policies following George Floyd. Indeed, he was behind these policies, demanding in a memo at the time that the DWP became an ‘anti-racist’ organisation. These policies were unlawful, yet they were implemented with a Zero Tolerance approach where any dissent was ruthlessly stamped out. Anna Thomas, an executive at the DWP, pointed out that the policies were likely in breach of both the Equality Act 2010 and the Civil Service Act. She was disciplined and eventually fired. She ended up winning the largest payout the Free Speech Union had secured at the time but she still lost her job and went through two years of poverty. The irony here of course is that she was actually doing her job. If you are employed and you read your employment contract carefully, in there will be a clause that requires you to speak up if you think your employer is doing something wrong or unlawful. She was fired by the DWP because she had the courage to do her job. Meanwhile Sir Peter? Well don’t worry about Sir Peter, he was promoted Knight Commander of the Order of the Bath last summer!

So if you speak out at an organisation where activists have captured the leadership there are very real world consequences for doing so. The depressing thing is that this keeps happening. Here, Guy’s and Thomas’s is blithely ignoring events in Fife and soldiering on. The HR team and senior management are keeping their heads down, obviously too terrified to challenge the demands of the EDI team and the LGBT Employee Advocacy Group.

When I asked the HR Director of NHS Fife why he had allowed the Sandie Peggie case to go as far as a tribunal and why the trust was, simultaneously, dragging her through a disciplinary process on the spurious claim that her refusing to work with the trans doctor in question was jeopardising patient safety (dear reader, if only you knew the sins committed under the rubric of ‘patient safety’), he deleted his LinkedIn account. Shocking? Yes. Surprising? No, he probably has no say in the matter, he’s probably been side-lined totally. Why hasn’t he resigned? Because if he did, the trust would go ahead anyway and he would lose his career, forever marked as a ‘troublemaker’.

How do we end this? Well, in America they don’t have an Equality Act. They run discrimination like we used to, multiple laws both at state and federal levels. But the big difference is, if an employer behaved like the DWP did to Anna Thomas, the compensation would be in the tens of millions of dollars, not the £100,000 she received for having her career wrecked by vindictive activists who had the hapless Sir Peter under their spell. I hate to say it but the only way this will be resolved is if the consequences for large employers who do this to employees are increased 10-fold. If this happened then the insurance companies that invariably fund these defences would call time on it and employers would no longer be able to afford indulging activists like this. We might even end up with those entrusted to lead and govern our institutions actually facing some personal cost for their failures.

But like so much in our once great nation, I wouldn’t hold your breath that this happens any time soon.

C.J. Strachan is the pseudonym of a concerned Scot who worked for 30 years as a Human Resources executive in some of the UK’s leading organisations. Subscribe to his Substack page.