'Bullied' GWH manager wins unfair dismissal case at tribunal

Mark Hemphill resigned as GWH’s head of health and safety, fire and security in July 2022 after struggling to deal with extra responsibilities that were not part of his job contract, and unsuccessfully applying to retire and return, and claiming that the chief executive at the time, Kevin McNamara, was unfairly targeting him.

A recent employment tribunal found that Mr Hemphill had faced a constructive unfair dismissal from his role and that there was evidence of a negative attitude towards him which influenced the decision to deny his retire and return application.

GWH strongly refutes allegations of a bullying culture among senior executives and says it will challenge the judge’s decision.

Mr McNamara said he raised concerns about Mr Hemphill’s behaviour and performance after hearing from colleagues and had always acted in the best interests of staff and patients.

'An impossible task'

Mr Hemphill’s frustrations began in late 2017, when the hospital trust took on responsibility for the KERI door security system from Carillion, as much of the extra work involved in this fell on his shoulders without receiving adequate resources or a pay rise to compensate.

The tribunal judgement notes that in 2018, Mr Hemphill wished to withdraw from managing KERI because he hadn't had the financial package he had wanted nor the funds for resourcing it, but Mr McNamara was not allowing him to withdraw, did not accept any conditionality to his involvement. and was dismissive of any difficulty in relation to budget and the allocation of funds.

Two serious door system failures bookended 2018, with no progress made on fixing the flaws during the year.

Mr McNamara blamed Mr Hemphill and said after the December incident: “Because of this lack of action, patients have been exposed to unnecessary risk and I cannot allow it to continue”.

A fraught meeting saw Mr McNamara mention concerns about Mr Hemphill’s attitude and behaviour while the claimant replied that he had been given “an impossible task” and that his recent appraisals were positive.

'The approach was bullying'

Kevin McNamara was appointed CEO of Great Western Hospital in March 2020 and left the role in summer 2023 (Image: Dave Cox)

Employment Judge Street wrote: “This was not a coherent meeting. The allegations were ill-thought-out, vague or inaccurate, stale, unsupported by records or investigation.

“Mr Hemphill saw himself as being deliberately targeted because he had put in a grievance against Mr McNamara.

“Mr McNamara had decided prior to the meeting that there was to be a performance improvement plan. He had not listened to Mr Hemphill earlier or made proper enquiry before launching this raft of allegations. The approach taken did not reflect the trust’s policy.

“The approach was bullying, given the manner in which the meeting was held – with two senior managers, a string of negative comments all at once, without warning, with wide-ranging but vague allegations, raising matters belatedly, that had not merited action at the time... refusing an opportunity to respond.

“Mr Hemphill was feeling duped, put upon, let down. He was not proving to be an easy man to manage. He shows resentment and intransigence. But the confusion about his role, what the funds were, and how to access them reflects a failure of management.

“There is a stark conflict between Mr McNamara’s negative judgment of Mr Hemphill’s performance and Mr Hemphill’s record. The concerns Mr McNamara had over lack of progress were justified. This might have been a moment to establish what had gone wrong.”

'Retire and return'

In 2021, after further stress and extra work during the pandemic, Mr Hemphill applied to retire and return but this was refused. He unsuccessfully applied again in March 2022 and his July appeal against this decision also failed, so he quit shortly afterwards.

Judge Street added: “He is saying that he was being unfairly treated and that that was deliberate. If, as I find, the reasons for the treatment were not genuine, that can be legitimately described by a layman as bullying.

“In my judgment, there was an element of capriciousness in the refusal of this [second] application… This was a lack of integrity, the use of subterfuge to avoid an unwelcome outcome, in putting forward reasons that were not genuine.

“Irrelevant matters - the negative attitude – were relied on in substitution for a fair assessment. No reasonable decision-maker would have made this decision.

“This was a breach of the implied term of trust and confidence. [GWH] behaved in a way that was likely to destroy or seriously damage the trust and confidence between the claimant and the respondent and had no reasonable and proper cause for doing so.

“Mr Hemphill was unfairly constructively dismissed.”

GWH responds

Great Western Hospitals NHS Foundation Trust chair Liam Coleman said: “Mr Hemphill’s claim succeeded on the basis of how his retire and return application was handled.

“The employment tribunal did not uphold Mr Hemphill’s claims of a culture of bullying propagated by current and former senior managers at our trust, which we strongly refute.

“We do not agree with the judge’s decision and intend to challenge this through the appropriate channels. We have applied for the judge to reconsider aspects of her decision and are preparing to appeal.

“Our leadership team remains committed to leading the trust in a way that enables all staff and volunteers to feel valued and supported to deliver great patient care.

“The results of the national staff survey, published this month, show improvement in all areas with an increase in staff recommending our organisation as a great place to work.”

Former CEO Kevin McNamara said: “During my time at Great Western Hospitals NHS Foundation Trust, I always tried to act in the best interests of staff and patients. I pride myself on a willingness to challenge poor behaviour when I see it – the standards we walk past are the standards we accept.

“As the written judgement from the tribunal states, in 2018 I raised concerns about Mr Hemphill’s behaviour and performance after concerns were raised to me by other staff, and strongly believe I acted in the right way in the interests of minimising any risk to patient safety and staff welfare.

“Many of the issues raised in the written judgement were not actually put to me and I therefore did not have the right of reply at the time. Mr Hemphill’s claims were investigated independently five years ago and were not upheld. I stand by the actions I took and refute the allegations made.”