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‘It Causes Life-Altering Trauma to those who Speak out in the Public Interest’Going Nuclear on Whistleblowers’ Rights
David Hencke and Philip Whiteley report on the dismissal of an employee of a nuclear processing plant after she spoke out against alleged systemic bullying, racism and sexism
An employment tribunal case that has been running for more than two years has started to raise profound questions over management at Europe’s largest nuclear reprocessing plant, the ability of the employment tribunal system to defend the rights of whistleblowers, ethical conduct by major law firms, and a conflict of interest at the Equality and Human Rights Commission.
The case of McDermott versus Sellafield, the Nuclear Decommissioning Authority and former Sellafield HR director Heather Roberts has been brought under the Public Interest Disclosure Act 1998 – also known as the Whistleblowers’ Act.
Alison McDermott, an HR professional and diversity specialist, claims that the sudden termination of her freelance contract in October 2018 by Sellafield was linked to her protected disclosures containing evidence of systemic bullying, and racist and sexist incidents at the Sellafield site in Cumbria.
Sellafield initially claimed that Ms McDermott’s dismissal was for financial reasons, but later switched to a defence of concerns over competence, relying on three letters of complaint, allegedly produced around the time of the protected disclosures. The metadata on one of these letters was wiped while in the possession of Sellafield’s law firm, DLA Piper. This matter is the subject of an ongoing investigation by the Solicitors Regulation Authority.
At the strike-out hearing, counsel for Sellafield, Deshpal Panesar QC, appointed by DLA Piper, accused Ms McDermott of being financially motivated and self-serving, and sought to impose costs on the basis of her late withdrawal of the metadata complaint as part of the grounds for strike-out, although the investigations by the Solicitors Regulation Authority had not been completed.
Ms McDermott applied to the Equality and Human Rights Commission (EHRC) for financial support in her case, but this was turned down three times. At the time of her applications, the chair of the EHRC was David Isaac, an equity partner at Pinsent Masons, head of the firm’s advanced manufacturing and technology sector and a member of the firm’s international operating board. Ms McDermott’s first application was in March 2019.
Pinsent Masons, representing the Nuclear Decommissioning Authority (NDA), sought to sever its client at the preliminary hearing held at Manchester Employment Tribunal on 31 July 2019 on the basis of claimed non-involvement, and impose a deposit order (a form of costs against the claimant). Ms McDermott subsequently discovered through subject access requests that the Authority had commissioned two closely linked investigations. Pinsent Masons’ barrister did not deny this when reported at a strike-out hearing granted to Ms McDermott, which took place via videolink in July 2020.
In an email recovered by Ms McDermott from June 2019 through direct subject access requests, the board and senior managers of the Nuclear Decommissioning Authority were briefed on an attempt by the authority to close down her crowdfunding website, used to raise funds for her defence. It declined to make this attempt after advice that it would be unlawful, but Rachael Levene, barrister appointed by Pinsent Masons, defended the initiative at the strike-out Hearing in July 2020, on the grounds that the site contained comments critical of the NDA.
The initial strike-out ruling was issued on 13 August 2020 by Judge Marion Batten and ruled that the case should proceed to a full hearing. A reconsideration hearing has been ordered, due to take place today, 15 January. A reconsideration may confirm, vary or revoke an initial ruling. The full hearing is due to start on 15 June 2021.
‘I Was a Witness to Wrongdoing’
The Public Interest Disclosure Act 1998 has as its principal aims that evidence of alleged wrongdoing should have a fair hearing, including the right of those accused to defend themselves; and that a whistleblower should not suffer detriment for the act of reporting an evidence-based case of apparent wrongdoing.
The All-Party Parliamentary Group on Whistleblowing has expressed concern over retaliatory tactics used by law firms, in a report published in July.
Alison McDermott declined to comment on the evidence before the tribunal while the case was ongoing, but she made a comment about the personal impact of being a whistleblower.
“Whilst the threat of costs against a litigant in person may be lawful, it feels immoral as I was a witness to wrongdoing,” she said. “I spent £40,000 of pension savings. The massive inequality of arms is grotesquely unequal; it makes a mockery of the aims of the Public Interest Disclosure Act, it causes life-altering trauma to those who speak out in the public interest and deters others from doing so.”
A spokesperson for Pinsent Masons said: “Pinsent Masons is a regulated organisation which takes professional rules governing client confidentiality extremely seriously. Those rules mean we are prohibited from commenting substantively on current or past client matters. This matter is subject to ongoing court proceedings and it is therefore inappropriate for us to comment.
“We take appropriate measures to identify any potential legal conflicts at all times in accordance with professional rules governing conflicts of interest. We can confirm that there is no relationship, commercial or otherwise, between David Isaac and the Nuclear Decommissioning Authority.”
Byline Times asked the Law Society whether the tactics commonly used in whistleblowing cases lie within its ethical code, giving the McDermott case as an example. A spokesperson said: “While we cannot comment on specific cases, the obligation of a solicitor is to represent their client’s interests to the best of their abilities and to advise them in line with the law but in doing so fulfil their own professional and ethical obligations – that’s true whether the client is a corporation or a private individual. The work a lawyer does should not be conflated with their client’s cause.”
The Conservative MP Maria Miller and Labour’s Harriet Harman had raised the potential for conflict of interest in David Isaac’s appointment in 2016.
Miller told Byline Times that it would be inappropriate for her to comment on a case that is before the courts, but pointed to the findings of two parliamentary committees into Isaac’s appointment which found that he “would be a good candidate for appointment as the chair of the EHRC if the concerns relating to potential or perceived conflicts of interest were to be addressed”.
“As a result, Mr Isaac submitted in written undertakings not to advise Government clients and not to receive profit as an equity partner from work conducted by [Pinsent Masons] on behalf of the Government,” she said. “In response, the EHRC proposed Mr Isaac would recuse himself from decisions where there was an actual or perceived conflict of interest. The duty of confidentiality between solicitors and their clients means that the committee was not able to monitor these undertakings.”
A EHRC spokesperson said that it could not comment on the details of individual applications for funding, but that it is “an independent regulator” and takes its impartiality very seriously. “We have robust procedures and policies in place to manage conflicts of interests or perceived conflicts of interests,” they added.
A spokesman for DLA Piper told Byline Times: “It would be inappropriate to comment given this matter is subject to ongoing court proceedings. As a firm, we uphold the highest professional standards and take the rules governing conduct and duty to the court in any litigation extremely seriously. The allegations made against the firm and our counsel in this respect are strongly refuted.”