Very properly, I have been asked by a considerable number of people to provide more detail about the BMA actions in respect of my case.
I do feel a sense of duty with regard to adequately explaining these issues more widely and in particular to medical colleagues. I have to be careful not to enter into ‘disputed fact territory’ at the risk of prejudicing current or future legal proceedings.
With this in mind, I am satisfied that the below cannot be disputed by Gateley or the BMA. I invite challenge from either the BMA or Gateley if I have got anything wrong and I will happily apologise.
Engagement of Gateley
From 22 August 2014, I was a client of Gateley PLC and or its predecessor Gateley LLP following referral from the BMA.
On 22 August 2014, whistleblowing detriment claims against the Trust and Deanery passed an independent Gateley merits assessment. The conclusion of the August assessment is below:-
“it seems to me that there is a better than 50% prospect that you would overcome the initial burden of proof in establishing that on balance of probabilities you made a protected disclosure and have been subject to detrimental treatment. As set out above, the burden of proof would then flip to the Trust to demonstrate that its treatment of you was not on the ground of the protected disclosure…
I am tasked by the BMA to provide an objective and professional opinion on whether there is clear and sufficient evidence available to suggest that your prospects of success are better than 50%. For the reasons outlined above I am of the view that your prospects of success in establishing a prima facie case exceed this threshold.”
In September 2014 the BMA insisted that my case be formally investigated by Health Education England and or Health Education South London. It should be noted that my contract at the Trust in question ended on 5 August 2014. The BMA made a legal threat against Health Education South London and or Health Education England verbally on 2 September 2014 and in writing on 10 September 2014.
On 18 September 2014, I was accompanied by a BMA Senior Industrial Relations Officer to a formal meeting with Trust appointed private investigators. I provided my principal verbal evidence to the Trust’s formal investigation at this meeting. In my opinion, the actions and words of the BMA rep during and shortly after the meeting indicated that he was very supportive of my case. As you would expect, my BMA representative produced detailed notes of the formal meeting which he showed me on the day.
Within days of the meeting on 18 September 2014, my Senior Industrial Relations Officer went on “special leave”. After several requests the BMA have refused to provide me with the formal trade union record of the 18 September meeting. The content of the meeting is of material significance to my Employment Tribunal proceedings.
BMA and Gateley Withdrawal
On 17 October 2014, 5 working days before the Employment Tribunal claim had to be submitted and before delayed Trust and Deanery formal investigations had reported, the BMA suddenly withdrew all legal help from the case. My BMA Senior Industrial Relations Officer continued on “special leave”. The BMA have since stated in a letter that this particular Senior Industrial Relations Officer no longer works for the BMA.
Gateley claimed that the merits of the case had suddenly dropped below the relevant 50% threshold required for BMA support. It should be noted that this conclusion was reached before formal NHS and Deanery investigations had reported their findings. These were investigations that the BMA had insisted on. The Gateley withdrawal also came after them agreeing to submit my Employment Tribunal claim on a particular date.
On withdrawing from the case, Gateley provided legal papers to me that were jurisdictionally flawed. That is to say that they included a Respondent for the Deanery that did not have its own legal entity. The papers also contained factual inaccuracies.
The Legal Ombudsman
When providing me with the legal papers, Gateley stated that I had the option to submit them myself. Employment Tribunal Judgments have confirmed that the advised legal approach from Gateley would have been jurisdictionally wrong. The Legal Ombudsman in their report seem to blame the BMA for Gateley’s flawed legal advice.
The Legal Ombudsman has stated the following:
“Whilst I recognise Dr Day’s contention that a law firm should not rely on a non-legal body’s understanding of legal matters, the body would be expected to have some familiarity with whether a particular relevant education department was a standalone legal entity.”
“The Firm’s service did fall below the standard Dr Day was reasonably entitled to expect, in order to reflect the impact on him of the shortcomings of the service, I have further decided that the firm should pay compensation.”
“This office is a lay organisation and in considering complaints of poor service, we are unable to review Dr Day’s case papers here and provide a second opinion on the merits of his case and comment on whether they were assessed correctly or not. To do so would require this office to provide legal advice which is not our function.”
Following the BMA withdrawal, I instructed alternative solicitors and completely different Employment Tribunal papers were produced and submitted independently of the BMA on 27 October 2014.
Surprisingly, on 30 October 2014, I was sent a new retainer from Gateley that was associated with a jurisdictionally flawed conventional unfair dismissal claim. The contract had a condition in it that if I had signed it would have prevented me pursuing my jurisdictionally sound whistle-blowing claims. The whistle-blowing claims were based on the Trust and Deanery/Health Education England’s alleged response to objective safety and staffing concerns. It should be noted that these concerns have been accepted by the Trust as a protected disclosure.
Despite criticism from the Legal Ombudsman, BMA chair Dr Porter is refusing to progress a formal complaint. He simply states without performing an investigation:
"the BMA has handled your case well and offered you the correct advice.”