A new era of NHS accountability
The recent announcement by Health Secretary Wes Streeting, proposing stringent measures to overhaul NHS management, highlights a gear shift in how the Government expects healthcare performance to be scrutinised in England. NHS hospitals will soon be subject to league tables, measuring indicators like care delivery and financial performance, with the intention of making performance visible to the public. Managers of failing trusts may face dismissal if they are unable to drive improvements, while top performers will be rewarded.
While the drive for greater accountability is admirable, the NHS, like any employer, must manage change in culture, approach, and expectations with due regard for employment law.
The legal landscape: Understanding the employment bill
The Employment Bill introduces additional obligations and complexities that may make addressing performance and dismissing underperformers a daunting prospect for NHS employers.
Under the current law, employers must not discriminate based on “protected characteristics” under the Equality Act 2010 or dismiss an employee for whistleblowing. Employees with more than two years’ service also have general protection against unfair dismissal.
From an employment law perspective, several key aspects warrant attention:
Enhanced protection against unfair dismissal
The Employment Bill introduces strengthened protections that will likely extend to public sector employees, including NHS managers. Dismissals must be clearly justified with evidence showing not only that an individual has failed to meet specific performance metrics but that the criteria and processes leading to these conclusions are fair and reasonable.
League tables, while offering a snapshot of performance, may not always reflect an individual manager’s contributions or challenges. Employers will need to be cautious when using these tables as the basis for disciplinary action.
Transparency and accountability in dismissal procedures
The Bill mandates greater transparency in disciplinary and dismissal procedures. For NHS employers, this means ensuring that performance reviews, evidence of “turnaround efforts,” and evaluations are well-documented, objective, and supportable.
External oversight may be required in contentious cases, particularly when senior managers contest the validity of assessments based on league table standings. Transparency will be critical in demonstrating fair treatment.
Linking pay to performance: Challenges and considerations
NHS chief executives’ compensation will be tied directly to performance metrics. Coupled with the Employment Bill’s stance on fair and equitable treatment, NHS employers will need clear, justifiable benchmarks for performance-linked pay adjustments.
Discrepancies in the application of these measures may result in claims of unfair treatment or discrimination, potentially triggering grievances or legal disputes.
Turnaround teams and managerial autonomy
The introduction of turnaround teams adds another layer of complexity to NHS management structures. The Employment Bill’s emphasis on workers’ rights, autonomy, and protection from abrupt changes in duties means that managers may need additional support and clear guidelines if external teams are to oversee or redirect their initiatives.
Employers should balance intervention with respect for managers’ professional discretion to avoid claims of constructive dismissal or breach of employment terms.
The role of evidence in dismissal decisions
The Employment Bill strengthens the requirement for a comprehensive, fair approach in all dismissal decisions. With potential accusations of discrimination or victimisation—particularly if performance frameworks are unevenly applied—NHS employers must ensure that any decision to terminate a manager’s contract is robustly substantiated.
In cases where managers are deemed “rotten apples,” NHS leadership will need to demonstrate that such labels are backed by data and consistent with due process.
Striking the right balance: Leadership and legal compliance
As the NHS faces increasing scrutiny, balancing the need for high-quality leadership with the requirements of employment law will be crucial. Managers must be given the right support, clarity of expectations, and fair recourse, especially in a system that inherently poses complex challenges.
This reform offers an opportunity to foster genuine improvement in healthcare delivery, but only if handled with transparency, fairness, and respect for legal protections.
Looking ahead: Preparing for change in the NHS
As the implementation of these reforms approaches, NHS employers and legal advisers must stay vigilant. The Employment Bill underscores the importance of fair, transparent practices that respect both accountability and the legal rights of employees. Ensuring consistent application of these practices will be key to improving accountability and driving high performance without compromising procedural fairness.
If handled effectively, these changes may provide an opportunity for NHS leaders to enhance managerial accountability and ultimately improve healthcare outcomes across the system.
