HC Deb 21 December 1999 vol 341 cc174-81WH 4.30 pm
Mr. David Chaytor (Bury, North)

I am glad, Mr. Deputy Speaker, to have an opportunity to place on the record the case of my constituent, Dr. Nicholas Priestley—[Interruption].

Mr. Deputy Speaker (Mr. Frank Cook)

Order. Will members of the public who want to leave this Chamber please do so quickly and quietly?

Mr. Chaytor

Dr. Priestley is a consultant neuropsychologist who works for a national health service trust. He is a chartered psychologist, he has a doctorate in clinical psychology, he is an associate fellow of the British Psychological Society and he is acknowledged to be a national expert in the treatment of head injuries. For several years, he has been a national expert witness; he is approved by the Law Society to work with cases involving head injury litigation.

In May 1995, Dr. Priestley was appointed lead consultant neuropsychologist for Highbank Healthcare Ltd., which is now a subsidiary of Westminster Health Care. It operates a head injury rehabilitation unit, which is in my constituency. In June 1996, Dr. Priestley was promoted to regional clinical director of the northern division of Highbank Healthcare. Two years later, in June 1998, he resigned his post after two years of systematic harassment by other senior members of staff, most of whom are no longer employed by Highbank Healthcare.

Before I go into greater detail, I must stress that I cannot comment on any of the professional clinical issues that are involved in the dispute, and I do not want to make a general criticism of the personnel policies of Highbank Healthcare or of Westminster Health Care. I want to focus on my constituent's case, which raises important legal and procedural issues, and to highlight the unacceptable harassment that Dr. Priestley had to endure for two years.

Dr. Priestley's harassment took many forms. He was harassed by the manager of the unit, by a director of the company and by other members of the clinical staff. I hasten to add that he was not harassed by nursing or care staff. He was, essentially, isolated as a result of management restructuring, which did away with important parts of his role. His secretarial staff was taken away, which made it impossible for him to carry out his professional responsibilities, and he was excluded from social events to which all other members of staff were invited, including, most notably, the Christmas meal. He was excluded from staff training, he was told that his personality had to change and his suitability to deal with patients was challenged. I remind hon. Members that he already had an established reputation as a leading expert in his field. After Dr. Priestley returned from sickness in late 1997 and early 1998, one of the directors of the company told Dr. Priestley that he wished that he had not recovered or returned and that he wished that he had died.

As a result of this continuous pressure, Dr Priestley collapsed from a cardiac arrest in late 1997. During that period, he submitted almost 30 written and verbal complaints to his management and to the company's personnel department. Those complaints document his concern and his sense of grievance and describe what he thought were professional misjudgment malpractices involving some colleagues. He also requested a copy of the company's equal opportunities policy, which needless to say, was not provided.

It may be asked why this case is different from many thousands of others that take place year in and year out across the country in different forms of employment. Two factors distinguish it from the routine cases of professional jealousy and minor harassment at work. The first involves the scale of harassment. I have with me a 30-page dossier that Dr. Priestley submitted to a tribunal. It details behaviour that goes far beyond what one would accept as reasonable. I have already referred to the fact that Dr. Priestley collapsed as a result of cardiac arrest. He was on the floor in a room to the rear of the unit. A manager in the unit, who was also a trained nurse, refused to call an ambulance. It was clear that Dr. Priestley's collapse was the result of chest pains. In view of the seriousness of the situation, it was obvious that the manager, who was acting on behalf of the company, was not prepared to do the basic, decent, human thing, which was to call an ambulance.

The second distinguishing factor involves the nature of the harassment that Dr. Priestley endured. It consisted, quite simply, of intense homophobia. Dr. Priestley is a gay man, and he does not seek to hide that fact. He did not consider that his sexuality would interfere in any way with his professional competence.

In order to convey the homophobic culture in the unit at which Dr. Priestley worked, I shall quote from one of the statements that he made to me at an earlier stage in our discussions:

There was an established culture at Highbank of discrimination and abuse directed at some minority groups and my complaints about this were consistently ignored. In September 1997, I was taken ill at Highbank following an acute cardiac event. Although this occurred whilst I was with a manager (who was also a trained nurse) I was left alone in a back room and no ambulance was called. When I returned to work after a period of convalescence, I was told by a senior figure at Highbank that he wished I had not recovered. I was also informed that another member of Highbank staff expressed disappointment that I had not died … A member of staff proposed there should be a formal risk assessment made of gay and lesbian employees because they were identified as a perceived 'threat' to patients at Highbank. I am aware that other employees at Highbank suffered similar distress to myself. Untrue allegations were generated that one staff member had AIDS. His formal complaints were not formally investigated. In June 1998, I reluctantly formed the view that my own position was no longer tenable because of the levels of discrimination, and I resigned. It might be suggested that that is the view of a man who sees himself as a victim. If so. I shall quote from supporting evidence that was provided by another employee at the head injury rehabilitation unit. That employee stated:

Before Nick started to work at Highbank, there was an established culture of homophobia and gay discrimination regarding any person whose lifestyle was viewed differently to the very 'traditional' and heterosexual culture that existed. I must stress that gay clients were also exposed to this judgmental and damaging conduct. I witnessed staff members regularly making numerous debasing and sterotypical comments about gay and lesbian lifestyles. Nick was frequently treated in a most degrading manner, ranging from crude comments to outright abrasive treatment. Strategies of exclusion from social events and conversations were ongoing, and actively promoted as a cultural norm. Attempts made to right these were dismissed and no concern offered regarding the damaging effects that were clearly apparent. This ethos was rife throughout the hierarchy of the organisation. Clinicians and management would perpetuate and maintain the treatment of gay people as unimportant and indeed abhorrent … Towards the end of my employment at Highbank, two health care workers expressed their distress and fear, describing experiences of discrimination within Highbank. They were desperate to reduce the shameful discrimination that occurred. As Nick supported them, commenting upon his own similar experiences, many members of the team became extremely hostile. … I am further aware of how Nick Priestley's health and safety was gravely compromised by a nurse/manager at Highbank who did not call for help but walked away when he collapsed with left-sided chest pains whilst at work. Towards the end of the time that Dr. Priestley worked at Highbank Healthcare, he decided that he had to take out a case of sex discrimination and victimisation. He took that to the Manchester employment tribunal in January 1998. The case was subsequently adjourned pending the outcome of another test case on a similar issue. In June 1998, he resigned his post, having found his position untenable, and took a further case to the tribunal for constructive unfair dismissal. That case was heard in March 1999.

The second stage of this extremely serious and distressing saga is the way in which Dr. Priestley was treated by the tribunal. His statement to the tribunal about his grievance states:

Despite paying lip service to 'equal opportunities', I believe my employers have acted in a high handed and oppressive manner towards me. Despite both verbal and written requests, they have persistently failed to provide me with a copy of their Equal Opportunities Policy. They have failed in their duty of trust and confidence towards me in refusing to investigate my legitimate concerns in any proper or meaningful manner. They have also failed to provide me with a safe and proper system of working, and as a consequence of their acts and admissions, my health has suffered. I should point out that his health continues to suffer.

Dr. Priestley's description of the events at the tribunal in March 1999 is intensely disturbing. I quote from this letter:

From the first day of the hearing, the Chairman was either unwilling or unable to control the proceedings. At the outset, serious concerns were raised by my Counsel Ms Laura Cox QC regarding the integrity of a number of the Respondents statements which remained unsigned and in some cases, reportedly unsupported by the alleged authors. The Chairman remained unconcerned by this. Despite a 74 page statement in which I described in detail the abuse to which I had been subjected, the Chairman had no questions to ask me about my allegations, preferring instead to engage in friendly banter with the Respondents Counsel. I was subjected to a cross-examination of the most intrusive kind for almost 2 days.… My perceptions of criminality with regards to my sexual orientation were considered and most distressingly, the parenting skills of my mother and father were ridiculed.… The Chairman made no atempt to moderate this approach… appeared uncertain about a number of legal points and relied upon the Respondent's Counsel for guidance. Each day of the hearing, the Respondents produced a large crowd of employees who had been given paid leave to attend, and whose sniggers and stage whispers became increasingly intimidatory both for myself and for those persons acting as witnesses for myself. The Chairman was either unwilling or unable to moderate this. More importantly, his behaviour was causal in permitting an atmosphere of mockery and ridicule to develop. … The atmosphere became so intolerable that one gay witness attempted suicide. Rather than relying solely on Dr. Priestley's statement, I shall bring to bear another witness's description of the events at the tribunal, who stated:

The witnesses for the respondents … turned up en masse on a daily basis. Their presence was enormously menacing and they seemed all but equipped with baseball bats to ensure that they could inflict as much damage as possible. Nick's witnesses expressed feelings of being intimidated by antagonistic and undermining utterances made by the respondents' side, with the legal forum offering no solace. … The Chairman seemingly colluded with the respondents, and I must say that as the hearing continued it became increasingly difficult to distinguish between his role and that of the Barrister for the respondents. Whilst there is no clear law to protect people from discrimination relating to their sexual orientation, such disgraceful and unashamed treatment of lesbians and gay men will continue to be permitted. Two issues relating to this sad story require attention. The first concerns the employer's responsibilities. There is currently no legal protection for gay or lesbian employees against discrimination on the ground of their sexuality. If Dr. Priestley had been a woman, had had a disability of some kind or had been a member of an ethnic minority, he would have had recourse to the law earlier.

Although many public employers now have policies on equality of opportunity that refer to sexuality, most private employers do not. For the record, I pay tribute to a small number of private employers who have taken the lead on the issue of discrimination on the ground of sexual orientation. They include Abbey National, Barclays bank, Boots, British Airways, British Gas, British Telecom, Cadbury Schweppes, Glaxo Wellcome, Granada Media Group, Halifax plc, Littlewoods, Lloyds, Marks and Spencer, Midland bank, Northern Foods, Rank Xerox, Rover Group, Sainsbury's supermarkets, Shell, SmithKline Beecham, Unilever and W. H. Smith. There are about 20 such employers. They are all large and, in most cases, multinational, and obviously represent only a tiny minority of the country's employers. There is clearly a case for building discrimination on the ground of sexuality into anti-discrimination legislation.

The second issue is procedure at tribunals. I hope that I have given a flavour of a particularly horrific and shambolic tribunal. Its outcome was that Dr. Priestley's QC—after challenging the chairman's objectivity on several points and finding herself unable to win those arguments—advised Dr. Priestley to withdraw from the tribunal because she did not believe that he would get a fair hearing. That raises the question of the procedure for selecting employment tribunal chairs, the rights of appellants to veto chairs, the training of chairs—especially in equal opportunities policies—and the monitoring of chairs' performance.

Will my hon. Friend the Minister tell us when the Government will be able to build protection for people on the ground of their sexuality into anti-discrimination legislation? Until that happens, what other steps can be taken to prevent such incidents from occurring again?

I know that employment tribunals are the responsibility of the Lord Chancellor rather than my hon. Friend the Minister, but what will happen as a result of the Lord Chancellor's investigation into the conduct of this tribunal and its chairman? I know that that investigation is taking place, because I have written directly to the Lord Chancellor, as have Dr. Priestley and other people.

I thank the Minister for listening patiently to the case that I have outlined, and look forward to her reply.

4.48 pm
The Parliamentary Under-Secretary of State for Education and Employment (Ms Margaret Hodge)

This is a very sad and difficult case. One must have sympathy for anyone who is harassed at work. Harassment or bullying, whether on the basis of race, gender, disability, age or sexual orientation, is pernicious. It can put the emotional well-being and health of the worker at risk. Bullying can lead to disaffection or illness, as this case indicates, and can blight a worker's career or entire life. It should have no place in any workplace.

The Advisory, Conciliation and Arbitration Service recently published a welcome and helpful leaflet, which describes bullying as offensive, intimidating and malicious, and states that its intention is to

"undermine, humiliate, denigrate or injure the recipient."

The leaflet defines harassment as

"unwanted conduct affecting the dignity of men and women in the workplace. It may be related to age, sex, race, disability, religion, nationality or any personal characteristic of the individual, and may be persistent or an isolated incident. The key is that the actions or comments are viewed as demeaning and unacceptable to the recipient."

Such behaviour is contemptible and unacceptable. There is no excuse for harassing, insulting or isolating any person on the ground of their sexual orientation. Sexual orientation should not be an issue in a modern society. Sadly, however, it remains so in the workplace, the media and more widely in society.

As my hon. Friend the Member for Bury, North (Mr. Chaytor) said, a growing number of employers are adopting the code of practice on harassment as part of their equal opportunities policies. In those workplaces, harassment on the ground of sexual orientation would be forbidden.

Sexual harassment is not named in the Sex Discrimination Act 1975, but it was long ago found in case law to be a detriment experienced on grounds of sex. Even in the current framework, someone who feels that they have been bullied or harassed has recourse to both civil and criminal redress. The Employment Rights Act 1996 gives someone the right not to be unfairly dismissed and harassment can be grounds for a claim of constructive or unfair dismissal. Civil action can also be taken under the Health and Safety at Work, etc. Act 1974 when it can be shown that harassment presents a risk to a worker's health. Criminal proceedings can be taken under the Criminal Justice and Public Order Act 1994, which created the criminal offence of intentional harassment, whether in the workplace or elsewhere, and under the Protection from Harassment Act 1997, which created another criminal offence of harassment as well as giving a right to damages. Thus, where harassment causes extreme distress to the individual involved, redress is possible in the current framework.

Dr. Priestley, who exercised his rights under the Employment Rights Act 1996, is one of many who has used the tribunal system to exercise their individual rights and, by doing so, influence future employment practices. Last year, some 105,000 cases were completed through the tribunal system. Although that might sound like an indictment of Britain's industrial relations, I prefer to see it as evidence of the right of individuals to ensure fair treatment at work and to seek redress where appropriate. I am well aware of the importance of the publicity that tribunals often receive in the media. It is a helpful incentive and reminder to employers of the need to keep within the law and provide decent working conditions for their employees.

I hope that my hon. Friend the Member for Bury, North will understand that I cannot comment on an individual case. It is a dispute between two litigants to which the Government are not party and it is not right for us to give a view or to appear to judge for or against any party in a private dispute. As my hon. Friend recognises, the way in which tribunals and the courts operate is a matter for the Lord Chancellor's Department and the Department of Trade and Industry, but not for the Department for Education and Employment. However, I can say that the Government fully expect every court user to be treated fairly and with courtesy.

I can also confirm that the Lord Chancellor himself, together with his officials, has gone into Dr. Priestley's case thoroughly. I understand that a reply is imminent, although I can give no indication of what it will say. The Lord Chancellor has the power to investigate the personal conduct of tribunal chairmen, but not even he can require chairmen to justify their actions during hearings or intervene in the decisions that they reach.

My hon. Friend the Member for Bury, North and other hon. Members have shown an interest in the appointment of employment tribunal members. Employment tribunals are independent judicial bodies. The chairmen are legally qualified and appointed by the Lord Chancellor, while lay members are appointed by the Secretary of State for Trade and Industry. The Government regard it as extremely important to ensure that the appointments procedure is free from discrimination, overt or otherwise. As with all public appointments, the Government insist that the selection of tribunal members is based on merit.

While recruiting new lay members recently, my right hon. Friend the Secretary of State for Trade and Industry took the opportunity to undertake the first nationwide recruitment competition open to members of the public. He consulted widely with the Equal Opportunities Commission, the Commission for Racial Equality and the Royal Association for Disability and Rehabilitation to ensure that the selection criteria were fair and unbiased. The competition has been a tremendous success. I am pleased to say that, in addition to the high quality of the recruits, 54 per cent. are women, 18 per cent. come from ethnic minorities and 18 per cent. have some form of disability.

The Lord Chancellor appoints new, legally qualified, part-time chairmen, again following an open advertisement, application and interview. Successful candidates are required to show that they have integrity, fairness, an understanding of people and society, maturity, sound temperament, courtesy and humanity.

Prejudice or overt bias of any kind would generally mark a candidate as unsuitable and anything of that nature is rigorously followed up by the interviewing panel. Full-time employment tribunal chairmen are usually appointed from those who have served on a part-time basis. Again, vacancies are filled after application and competitive interview.

Chairmen receive extensive training on appointment and then at regular intervals, including training in discrimination issues. Training is overseen by a panel chaired by the President of Employment Tribunals. The conduct of tribunal chairmen and women and the way in which judicial decisions are made are a matter for the President of Employment Tribunals.

We are taking action across government to tackle the discrimination faced by gay and lesbian people in our society. My hon. Friend the Member for Bury, North will know that my right hon. Friend the Home Secretary intends to reintroduce legislation to equalise the age of consent. The Home Office is also conducting a comprehensive review of sex offences and penalties. One of its terms of reference is that all new offences must be compatible with the European convention on human rights—as enacted by the Human Rights Act 1998—to ensure that they are fair and non-discriminatory.

The Department of the Environment, Transport and the Regions is taking forward the repeal of section 28 of the Local Government Act 1988.

My hon. Friend will also know of the ruling of the European Court of Human Rights which found that the policy of the Ministry of Defence—that homosexuality is not compatible with service life—was unsustainable. The Chief of the Defence Staff has commissioned an urgent review of the policy on homosexuality, the aim of which is to sustain operational effectiveness within the law.

The Equal Opportunities Commission has been commissioned by the Department for Education and Employment to work with us and a steering group of stakeholders to produce a non-statutory code of practice preventing discrimination on the ground of sexual orientation. It will be similar to the non-statutory code of practice on age diversity that we have also brought in.

The new code of practice will also cover a wide range of other behaviour that makes life unequal and uncomfortable for gay men and lesbians, including inadvertently hurtful, as well as deliberate, behaviour. I know that the Equal Opportunities Commission will fully consult all stakeholders and community groups to ensure that the code addresses issues with a negative impact on gay men and lesbians in the workplace. We want to ensure that employers understand that discrimination on the ground of sexual orientation is not acceptable and that they are clear about the steps that they can take to avoid it. We believe that the new code can have a significant impact after the good work of the EOC in introducing it. The EOC has a long and proud record of helping individuals and advising employers. The effect of the code will of course be assessed and the Government will then review the need for legislation in the light of code's evaluation and developments in other areas.

There are two reasons why my hon. Friend the Member for Bury, North wanted this debate. First he was concerned that anyone should suffer harassment and distress because of prejudice at work. I share that concern and regret that it should ever happen. It is unacceptable for any employer to allow staff to behave in that way.

My hon. Friend's other reason was to express his concern at the handling of the dispute by the authorities. As I said, that is a much more difficult issue for me to address. I hope, however, that I have reassured him that the Government take seriously the need to ensure fairness and equal treatment in our tribunals. It is clear that existing legislation allows individuals who have been harassed on grounds of their sexual orientation to bring claims for constructive dismissal. Sexual orientation is not one of the categories of dismissal that the Employment Rights Act 1996 regards as fair.