Being fair

Supporting a just and learning culture for

staff and patients following incidents in the NHS

Advise / Resolve / Learn

Advise / Resolve / Learn
 Contents

Contents

Key messages5

Examples of practices used across the NHS – see details in examples  9

Example 1 – Just learning culture charter 10
Example 2 – Mersey Care - a restorative approach 13
Example 3 – Barts Health NHS Trust - pre-disciplinary checklist 14
Example 4 – NHS Improvement - A just culture guide 17

Background to guidance18
Section 1 – Introduction and purpose 19
Section 2 – Context and theory 20
Section 3 – Impact on staff 25
Inequity 25
Fear 26
Incivility and bullying 27
Section 4 – Claims 28
Claims related to staff and bullying 28
Table 1: Numbers of all claims by date of notification an annual cost 28
Table 2: Numbers and value of claims by type of NHS organisation 29
Figure 1: Claims notified to NHS Resolution 2013 to 2017 (n=317) 30
Descriptions of harm within these claims 31
Section 5 – Suspension, exclusions and professional regulation 32
Suspension / exclusion 32
Professional regulation 33

Conclusion34

References36

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NHS Resolution Being fair

4
 Key Foreword
messages

Key messages

A just and learning culture is the balance of fairness, justice, learning –

and taking responsibility for actions. It is not about seeking to blame
the individuals involved when care in the NHS goes wrong. It is also
not about an absence of responsibility and accountability.

The vast majority of people We recommend using a

who work in health and social balanced approach to safety, In order to achieve a just
care wish to provide the very i.e. that we learn from when and learning culture when
best care they can, given the things go wrong and learn care has not gone as
circumstances they are working from when things go right. expected or planned, three
in. There is very rarely intent If we progress this thinking questions (Dekker 2017)
by staff to provide care that then the definition of safety should be asked:
did not go as expected or shifts from ‘avoiding something • who is hurt?
planned. While this guidance that goes wrong’ to ‘ensuring • what do they need?
is predominantly about how that everything goes right’.
• whose obligation is it
staff are treated, this is with Then we can help people
to meet that need?
the intent to ensure that the succeed under the varying
benefits of a just and learning conditions so that the number A Just and Learning Culture
culture for staff will have a of intended and acceptable Charter is provided (see
significant and positive impact outcomes is as high as possible. example 1) for you to
on patients and their families. adapt and adopt which
A resilient organisation helps
includes many of the key
All actions should be staff work safely every day.
messages that organisations
understood before being Resilience also provides the
can consider.
judged and staff should be ability for an organisation
supported to learn from their to sustain its operations
actions. Furthermore they under both expected and
should be asked for their unexpected conditions.
advice and help to design
the systems that could help
change things for the better.
Those responsible for
managing incidents should
use the science of human
factors, including investigative
techniques, skills, expertise
and methods that help us fully
understand what happened
in order to learn from errors
or harm in the future.

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NHS Resolution Being fair

Co-designing the solution to

developing a just and learning culture

A roundtable workshop of work is actually done and

HR directors, regulators, NHS not the work that people The overarching aim of the
arm’s length bodies and some (leaders, policymakers, group was to provide the
patient safety experts was regulators) imagine is NHS with the latest thinking
convened by NHS Resolution or could be happening together with guidance on
in February 2018 to explore how to replace blame with
• Identifying what good learning, and to ensure
the concept of developing a
practice looks like that there is equity for all
just and learning culture and
to share best practice. staff and a proportionate
• The importance of role
response to concerns about
modelling and leadership
Participants discussed the performance or behaviour
by example
need for: for all staff, regardless of
• Creating ways in which race, ethnicity, disability
• Linking patient safety
staff can be listened to or sexual orientation.
with staff engagement,
and using staff stories
health and wellbeing Central to the approach
at Board level and other
in the future, the group
• The balance of learning, senior leadership meetings
agreed three aims:
accountability and
• Building a strong partnership
responsibility 1 T
 o prioritise learning
with ‘staff side’/staff
about how to minimise
• An understanding of why representatives and
the conditions and
or whether a disciplinary involvement of staff
behaviours that can
investigation is the right diversity networks
underpin or lead to error
response following an
• Tackling incivility and the rather than apportion
incident
bullying culture within individual blame.
• Use of the science of health and social care
2 B
 uild a consistent
human factors and the
• Where appropriate, using approach for all staff, no
latest thinking on
third-party advice (e.g. matter what profession
creating a just culture
Practitioner Performance or what background.
• In addition, a focus on Advice service – within
3 A
 determination to
behavioural change and NHS Resolution).
avoid, wherever possible,
understanding more about
inappropriate suspension,
a ‘safety II’ approach in
exclusion and disciplinary
terms of learning what
action unless there is
works and the specific
wilful intent.
aspects of working in health
and social care, i.e. the
difference between how

6
 Co-designing the solution to developing a just and learning culture

What we need is a restorative the right conditions to • Early intervention by

just culture (Dekker 2018) help people work safely trained and committed
that is about repairing and by truly understanding senior staff to distinguish
building trust and relationships what work is like and not between blame and
when things have not gone as how it is imagined to be accountability based on a
planned. This means we need (Hollnagel 2013) thorough understanding
to develop working practices of human factors, patient
• An emphasis on ensuring
that move people away from safety, the restorative just
that new staff (whatever
fear and blame, including and learning culture, and
their background, and
tackling incivility and bullying, behavioural psychology
especially if trained overseas)
and addressing the health
are supported and are aware • Speedy interventions to
and wellbeing needs for staff
of the organisation’s values determine whether any
to help them work safely.
and the behaviours they form of disciplinary
Ensure everyone’s needs are
should expect for themselves investigation is needed and
met, no matter who they are.
and from others timely resolution for all
Treat everyone fairly, no matter
what their background is, • An acknowledgement that • The use of a tool such as a
and help them speak up. excessive and inappropriate triage approach, checklist
disciplinary action may be or prompts simply to help
To create a just and learning
taking place in respect of reflection and challenge
culture the group considered
staff from all backgrounds prior to any disciplinary
a need for:
and especially, unwittingly action– and to use these
• A
 ll staff, patients and their or otherwise, those from with caution to ensure
families to be provided BAME (black, Asian and that they do not lead to an
with appropriate support minority ethnic) backgrounds inappropriate focus on the
at all times individual or individuals,
• Reduce the need for
i.e. that they in themselves
• T
 o ensure that the culture inappropriate disciplinary
do not perpetuate a blame
is restorative for all and not investigations
culture in some way
retributive or adversarial
• Using staff data related
(Dekker 2018 and 2017) • Accountability of decision
to disciplinary action,
makers throughout the
• A
 challenge in the current suspensions and exclusions
system to learn.
thinking and a change to check if any patterns of
in mindset in relation to high (or disproportionate)
healthcare and how it could levels of disciplinary action
be safer, with a focus on exist and why, and whether,
learning rather than blame over time, they are reducing
and with a focus on creating

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NHS Resolution Being fair

8
 Examples of practices used across the NHS

Examples of practices
used across the NHS

The following are just a few examples of what

people are doing in the NHS as a way for others
to see the kinds of ways in which a just and
learning culture could be built.

Organisations are at different However the use of an

stages, and are still learning agreed tool or framework
about what works. There by organisation is helpful
are a variety of approaches in supporting a more
being taken, with no single consistent approach
approach recommended over towards all staff groups.
another (further examples
of best practice may also be
helpful to consider).

Example 1 - Just and learning culture charter.

Example 2 - Restorative approach: Mersey Care NHS Trust

and the use of a restorative approach adopted from and
influenced by the work of Professor Sidney Dekker (2017).

Example 3 - Triage system: Barts Health NHS Trust and the

use of a triage system to determine whether disciplinary
action is necessary or inappropriate.

Example 4 - A just culture guide: NHS Improvement ‘just

culture guide’ which also acts as an aide memoire for people
to assess the appropriate response when something goes
wrong (NHS Improvement 2018).

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NHS Resolution Being fair

Example 1
Just and learning culture charter

The following is a suggested ‘Just and Learning Culture Charter’

for organisations to adapt and adopt.
Our organisation accepts 4  We need to take the blame 8  We will recognise that
the evidence that we will out of failure. This means people are less willing to
provide safer care and be changing the mindset speak up if they are afraid
a healthier place to work if and the language associated of being punished or
we are a learning organisation. with safety – from blame prosecuted. We will build
Humans are fallible; they to learning. However, this a culture where individuals
make mistakes and errors. does not mean an absence feel able to speak up,
of accountability. offering different levels
1  Patients’ physical and
Accountability is about of access (e.g. freedom to
mental health must remain
sharing what happened, speak up guardians) and
the paramount concern
working out why it ensure that when they
of any treating health
happened, and learning do speak up they are
professional, whether or
and being responsible fully supported within
not there is a dispute over
for making changes for the organisation.
treatment or a clinical
the future safety of staff
error is alleged to have 9  All people in contact with
and patients.
been made. our organisation –
5  We will always want to employees, contractors,
2  Clinical incidents have a
understand why things patients, relatives and the
real and deep impact on
don’t go as planned in order public – are encouraged,
people’s lives. Patients (or
to redesign systems and and sometimes even
their partners or relatives)
processes to minimise the rewarded, for providing
who have been affected
chances of them happening essential, safety-related
have a right to explanations
again in future, and support information.
and to seek apologies,
individuals to work safely.
assurances and/or financial 10  As part of our just and
compensation for injuries 6  We will learn about what learning culture we will
caused where appropriate. works well, and why, in ensure that people are
order to replicate and clear about where the line
3  The vast majority of things
optimise these behaviours must be drawn between
that do not go as planned
and processes. acceptable and
are due to unintentional
unacceptable behaviour.
acts and choices, and only 7  We will publish guidance As an organisation we
a tiny minority are as a summarising the recognise that incivility,
result of intentional acts, fundamental principles rudeness and bullying are
recklessness or wilful of a just and learning damaging both to staff
behaviours. Processes culture which will be wellbeing and patient
should be designed to applied at all levels of our safety, and we will seek
support the vast majority organisation, from the to address these issues.
of staff to help them executive to the frontline. That means being
work safely.
respectful, civil and kind.

10
 Example 1: Just and learning culture charter

11 W
 e will ensure that all 15 
Those who report concerns We will ensure that advice
our staff recognise that will be notified in a timely given by Occupational
inappropriate responses way of the steps taken in Health will be followed
may disproportionately response. Where patient in a timely manner.
impact on some groups of care was compromised, the
staff, notably BAME staff. family will be told in a 19 
We will encourage and
timely way in accordance expect all staff to continually
12 People
 must be confident with our duty of candour. consider what factors can
that their identity, or the affect behaviour and
identity of any person 16 
While we recognise that performance, such as design
implicated in any report disciplinary action may be of systems, processes,
they make, will not be necessary, we will ensure products, equipment and
disclosed without their suspension is rare and is environmental factors.
knowledge, unless this never a knee jerk response We will also consider
is required by law. to whatever has happened. factors including fatigue,
workload, team relationships
13 
If a more formal 17 
Our organisation recognises and communication on
investigation is required, that there will be working safely.
we will ask what happened circumstances where
and why, and what can referral to a professional 20 We recognise the
be learnt. A decision will regulator may be importance of role models
be reached within a locally appropriate for some staff and leading by example
agreed reasonable in certain circumstances for senior leaders at
timescale. When we within the thresholds set executive level. Reports
investigate when things by the regulator. When on progress in moving
go wrong, we will try to that happens, it will only towards a just and learning
recognise and minimise be done in accordance culture will be a part of all
natural biases we all have, with our principles of leadership meetings, and
such as hindsight, outcome learning and never as an shared with staff and
and confirmative bias. At all additional punishment. patients appropriately.
stages the emphasis will be
on learning, not blame, and 18 
We recognise the
on why it happened rather importance of engagement
than ‘who did it’. with staff on this issue -
linking patient safety to
14 
When a concern is raised staff health and wellbeing,
or an investigation is and recognising the
required we will have in contribution that frontline
place clear governance to staff can bring. As an
ensure that investigation organisation we will
reports are followed up, emphasise the importance
setting out which actions of staff wellbeing as a
are being taken to address foundation for helping
error-producing conditions people to work safely.
in the future.

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NHS Resolution Being fair

12
 Example 2: Mersey Care - a restorative approach

Example 2
Mersey Care - a restorative approach

The approach adopted, Analysis of the Trust’s and understanding the incident
and influenced by the (disciplinary) cases has first, changing questions from
work of Dekker, S. (2017), shown that the Trust has a ‘who’ to ‘what’ to get to a
emphasises: high volume of disciplinary place of understanding.
investigations, with over 50%
• The importance of There has since been a
of investigations resulting in
language significant reduction in
there being no case to answer.
disciplinary cases. One of the
• The risk of hindsight bias Attention was therefore
four clinical divisions saw a
focused on the initial stages
• Change of focus from 64% reduction in disciplinary
of the process and how the
policies that punish cases between 2016 and 2017.
Trust determined that an
to policies that assist Having a level of psychological
investigation was required.
practice safety, where issues can be
Mersey Care introduced raised and addressed before
• A focus on informal
template documentation they escalate, is a major factor
approaches over formal
which, they state, was probably in improving both patient
procedures
one of the most significant and staff safety.
• A fair balance of factors in reducing cases.
In September 2018, the Trust
justice, forward looking Whilst the documentation
completed a research study
accountability and itself is simple, it encouraged
with Professor Dekker and
intervention - just culture those responsible for making
Art at Work on identifying
the decision to ensure the
• Working with staff-side and evaluating the economic
appropriate information
in partnership working benefits of restorative
had been obtained and
practices. It was found that
• Ensuring that staff feel it considered, before deciding to
the introduction of restorative
is safe to speak up, with instigate formal proceedings,
practices has coincided with
specific mechanisms to and the rationale was then
many qualitative improvements
support this clearly documented.
for staff. The report highlights
• The importance of Where possible and an estimated assumption
sharing learning, appropriate, the Trust worked of the economic benefit
anonymised if needed to make sure that those who of restorative justice to be
may be subject to disciplinary approximately 1% of the total
• Refresh of the trust
investigation were able to costs and approximately 2%
values and drawing on
contribute information to the of the labour costs. These are
human factors science;
process. The HR team advise estimates and are based on
introduction of new
managers with gathering a relatively narrow window
value of support, which
appropriate information in the (a two-year period).
includes encouragement
initial stages, but the focus is
to raise concerns so to
very much on investigating
learn from experience.

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NHS Resolution Being fair

Example 3
Barts Health NHS Trust – pre-disciplinary checklist

At Barts Health NHS Trust, A number of other Trusts This checklist is to be used
a pre-disciplinary checklist is have used similar approaches by the reviewing manager
used which has led in its first which stress the importance of BEFORE a decision to
12 months to a considerable having informal conversations formally investigate a
reduction in the overall volume at the very beginning, with a worker is made.
of disciplinary investigations focus on learning rather than
The following triumvirate
and a significant narrowing formal investigations which
applies, where a decision
of the likelihood of white tend to focus on finding who
is then made to establish
and BAME staff entering the is to blame. The precise format
that an investigation is
disciplinary process. varies, but the principles
appropriate and that all
are similar.
appropriate steps have
been taken to cultivate a
culture of learning from
an incident rather than
punishment.
• Site Director of Nursing
and Midwifery
Nurses and Midwives
• Site Medical Director
Doctors
• Site Operational Director
All other Staff Groups

14
 Example 3: Barts Health NHS Trust – pre-disciplinary checklist

Have you asked yourself the following questions (1-6) before making
a decision to formally investigate the individual concerned?
1 
Is it a capability or conduct 3 H
 ave you reviewed the 4 
How well have you reacted
issue? (Y/N) worker’s knowledge against to this situation? Have
their skills and determined you as a manager...
2 If a conduct issue, does the
if the worker knew of
conduct of the employee a. Read the situation
the rule or performance
sit within the list of gross well (Y/N)
standard? If so, which of
misconduct stated in the
these applies? b. Got the employee’s
non-exhaustive list at the
attention (Y/N)
end of the Disciplinary i. The worker does not
Policy?* (Y/N) have the knowledge c. Created the right
of what to do and so relationship with the
a. Did the worker intend
can’t in practice (Y/N) employee (Y/N)
to cause harm? (Y/N)
ii. The worker knows in d. Raised the concern
b. D
 id the worker come theory but can’t in informally with the
to work drunk or was practice (Y/N) member of staff in the
there any other same way you would with
noticeable impairment iii. The worker knows how
any other employee (Y/N)
to their judgement or to and can in practice,
competence? (Y/N) but isn’t (Y/N) e. Actively observed or
identified which of 3i,
c. Did the employee a. Have you done a
ii, iii, 2c applies? (Y/N)
knowingly and preliminary investigation
unreasonably increase to understand the
risk by violating situation well? (Y/N)
known safe operating b. Have you ensured you
procedures? (Y/N) have taken statement(s)
d. Would another similarly from the employee
trained and skilled involved and given
employee in the same them an opportunity
situation act in a similar to present their version
manner (the ‘James Reason of events? (Y/N)
substitution test’)1 (Y/N) c. Have you exhausted the
informal route? (Y/N)
d. Have you maintained
consistency in dealing with
* Questions 2a to 2d would be applicable
in cases of Serious Incidents (SI) this situation regardless
1
James Reason provides a decision tree for of the employee’s
determining culpability for unsafe acts - banding and protected
Reason, J (1997).
characteristics? (Y/N)

15
NHS Resolution Being fair

5 
How open have you been 6 
Given that our Trust’s values 7 R
 eferring to question 3,
in taking an overview of and disciplinary policy if evidence is strong then:
activities and impact emphasise improvement
• If the employee does
and learning, not
a. Have you ensured the not know how, so
punishment, have you:
employee understands can’t in practice, then
the situation well? (Y/N) i. Considered whether a development plan
the employee has is required
b. Have you ensured they
shown any remorse
have understood the • If the employee knows
and understands the
rationale for applying the in theory, but can’t
implications of their
Disciplinary Policy? (Y/N) in practice, then a
actions? (Y/N)
development plan is
c. Do they understand
ii. Have you considered required
the ‘pause and review
‘plea bargaining’ in the
process’ and the • If the employee knows
Disciplinary Policy?**
next steps involved how to and can in
(Y/N)
in this? (Y/N) practice, but isn’t,
iii. Have you followed Trust then continue with
d. Have you checked if
values whilst dealing with formal investigation
the employee is aware
this situation? (Y/N) for disciplinary action.
of various support
mechanisms such as Trust
Employee Assistance
programme, OH, HR, Finally, have you determined that, by carrying out an
and Union? (Y/N) investigation for disciplinary action against this individual,
it is consistent with how other employees have been treated
e. Have we positioned
for the same or similar misconduct/action? (Y/N)
praise or blame? (Y/N)
f. Have we ensured
they agree with the
conclusion? (Y/N)
g. Have the next steps
been discussed with
the employee? (Y/N)

**
‘Plea bargaining’ exists for where an offence arises and the individual admits to the offence; they can therefore accept the sanction (warning)
without a long drawn out investigation and hearing. The manager must ensure the sanction is in line with the level of warning given in other
related hearings to ensure consistency. It is a way of avoiding a formal process but not the sanction and can therefore only be considered for
a first offence (because if it happens again then the individual hasn’t learnt the lesson from the first incident).

16
 Example 4: NHS Improvement – just culture guide

Example 4
NHS Improvement – just culture guide

NHS Improvement published We will revisit and update safety investigation and it
a guide in 2018 to encourage this guide, as necessary, as should not be used routinely.
managers to treat staff our understanding develops. It should only be used when
involved in a patient safety there is already some suspicion
This guide supports a
incident in a consistent, that a member of staff
conversation between
constructive and fair way. requires some management
managers about whether
This guide updates and to work safely.
a staff member involved
replaces the incident decision
in a patient safety incident NOTE: A just culture guide will
tree (IDT) developed by the
requires specific individual be reviewed later in 2019 in
National Patient Safety Agency
support or intervention to light of any recommendations
(NPSA) around the work of
work safely. The guide: from the Professor Sir Norman
James Reason, an expert in
Williams Review.
human error and its drivers. • A
 sks a series of questions
that help clarify whether
NHS Improvement state:
there truly is something
• T
 he fair treatment of specific about an individual
staff supports a culture that needs support or A just culture guide
of fairness, openness and management versus whether
This guide supports a
learning in the NHS by the issue is wider, in which
conversation between
making staff feel confident case singling out the
managers about whether
to speak up when things individual is often unfair
a staff member involved
go wrong, rather than and counterproductive
in a patient safety incident
fearing blame
• H
 elps reduce the role of requires specific individual
• S upporting staff to be unconscious bias when support or intervention
open about mistakes making decisions and will to work safely.
allows valuable lessons to help ensure all individuals
For further information:
be learnt so that the same are treated equally and
https://bit.ly/2R0hb4J
errors can be prevented fairly no matter what their
from being repeated. In staff group, profession
any organisations or teams or background. This Scenarios to support
where a blame culture is has similarities with the training in using a just
still prevalent, this guide approach being taken by culture guide
will be a powerful tool in a number of NHS trusts to
To help with the training,
promoting cultural change reduce disproportionate
we have developed a series
disciplinary action against
• T
 his is our best current of case scenarios that
black, Asian and minority
understanding on how facilitators can use to walk
ethnic (BAME) staff.
to apply the principles people through the tool.
of a just culture in practice, The guide can be used at
For further information:
and that this is a live any stage of a patient safety
https://bit.ly/2KakPYX
area of both academic investigation. It does not
and practical debate. replace the need for a patient

17
NHS Resolution Being fair

Background to guidance

18
 Introduction and purpose

Section 1
Introduction and purpose

This paper sets out the case for a just and

learning culture for everyone working in and
receiving care across health and social care.

It provides the current context, The paper applies as much

considers the harmful impact to a small community team
on staff working in a blame or general practice as it does
culture, and assesses the latest to a large teaching hospital
thinking and evidence base trust. While the conversation
for what good looks like. The is predominantly about how
theory and evidence around staff are treated, this is with
a just and learning culture are the intent to ensure that the
backed up by examples from benefits of a just and learning
organisations that have started culture for staff will have a
on the journey to shifting significant and positive impact
the emphasis from blame to on patients and their families.
learning when care has not
This is about creating and
gone as expected or planned.
supporting a just and learning
This paper is intended to culture for all in health and
start a conversation about social care.
what we could do differently
across health and social care.
It offers help for health and
social care organisations who
are considering the steps they
could take in order to create
a just and learning culture in
their organisation no matter
how big or small.

19
NHS Resolution Being fair

Section 2
Context and theory

Over the last two decades A learning organisation is If safety is both a state
there has been a concerted where everyone facilitates where as few things as
effort to make healthcare safer a culture that helps to possible go wrong and
(Woodward 2017), but there continually transform and a state where as much
is still much to do. improve that organisation as possible goes right
(Argyris, Putnam and Smith (Hollnagel 2013), then
The current data we have,
1985; Senge 1990). A learning organisations and leaders
together with a range of
organisation that has safety need to:
healthcare reports and
at its heart studies all aspects
inquiries over the years, have • be mindful of the
of care. This, in turn, uses that
highlighted the need for potential for things not
knowledge to help people
improvements in how we to go as planned; to
redesign the workplace; for
learn about how to make understand the potential
example systems of work, the
care as safe as it could be for risk and harm; and to
way equipment is placed and
(Kennedy 2001; Francis 2013; take steps to prevent and
stored, the infrastructure and
Berwick 2013; Kirkup 2015). minimise the impact
staffing needed, and processes
This requires us to improve our
of how care is delivered. • seek to learn when things
learning about how day-to-day
don’t go as planned;
care is delivered, how it feels The mindset should always be
learn so that things can
to work for frontline staff, to design systems that support
be changed to the system
and ways in which they need the individuals within those
and change things to
to adapt and adjust what they systems to work safely. It also,
help people work safely
do to keep patients safe. importantly, includes learning
about how people behave and • seek to learn from the
This means learning how care
what supports safer behaviours day-to-day and from
is delivered, not how we
and decision making. This when we get it right in
imagine it is delivered, but
includes understanding the order to replicate this and
exactly how it is done on a
significant links between the optimise what we know
day-to-day basis. It requires us
health and wellbeing of staff we already do well.
to improve our learning about
and safer practice.
what is working well and
what doesn’t go as planned The latest thinking in safety is
or expected (Hollnagel 2013). based on decades of research
Underpinning this learning in human factors, sociology,
is a culture which is kind, psychology, cognitive systems
respectful and which enables engineering and other sciences.
people to speak out openly, It reflects the development
and to share issues, concerns and balance of both restorative
and ideas without judgement practices and accountability
(Dekker 2018). (Hollnagel 2013; Shorrock and
Williams 2017; Woodward 2017;
Dekker 2018).

20
 Context and theory

There is a growing body of Ask the people who do the Turning to a just and learning
evidence that demonstrates work every day and discover culture, there are different
that a way forward is to how the world looks from their views as to what this actually
embed a just and learning point of view – both staff and means. David Marx (2017)
culture. A checklist, or charter patients (Dekker 2018). People writes about identifying the
or framework provides the should be seen as the solution different behaviours that are
foundation for helping people to harness, not the problem exhibited in the workplace.
create a just and learning to blame (Dekker 2018). He describes how humans
culture; culture change cannot are erroneous, risky or reckless
A just and learning culture
be achieved by these tools but and he talks about how, by
also requires us to understand
they will help organisations truly understanding these
much more about the science
to evolve, and grow in order different behaviours, we can
and application of human
for a just and learning culture then respond appropriately
factors. This should involve
to be embedded into every and proportionately to these
exploring the conditions in
interaction people make. behaviours.
which people work in order
Leaders, therefore, have to design the systems and The term human error has
the responsibility for role processes to help work be as been used for over three
modelling the right behaviours safe as it can be. It involves decades and is now accepted
to create and maintain a safe learning about why human as a common explanation for
and supportive environment beings behave as they do and ‘when things go wrong’ such
for both the patients and staff what factors can affect their as mistakes, slips, lapses and
that is fair, open and able to behaviour and performance, so on (Reason 1997). Some
learn. This includes employing including design of systems, people also try to distinguish
and devolving decisions to processes, products, equipment between each of these. There
embed safe practice among and environmental factors is a view that, by using the
experts. This can be achieved such as noise. It also includes term ‘human error,’ it focuses
by bringing together different an understanding of the the mind purely on the human
professions, teams and impact of factors like fatigue, being as the cause and not
departments to hear from workload, team relationships the circumstances that led
everyone, no matter how and communication on to the error occurring.
disparate their views. It is vital working safely.
that the changes needed to
The study of human factors
embed safe practice involve
also helps us to understand
those who work at the ‘sharp
how we should investigate
end’ of the organisation and
when care has not gone as
that those who receive care are
expected or planned in a
truly listened to and asked how
way that seeks to minimise
things should be done.
natural biases such as
hindsight, outcome and
confirmation bias (Shorrock
and Williams 2017).

21
NHS Resolution Being fair

Marx (2017) suggests the following:

1 
Human error is inadvertent action or actions in a non-judgmental way first
inadvertently doing other than what before seeking immediately to blame and
should have been done and it should sanction – there may be very justifiable
be accepted that this is what we do as reasons for these behaviours and these
humans, that we are fallible and therefore need to be understood and learnt from.
people who are erroneous should be
3 
Reckless behaviour is when people make
consoled and supported.
choices that are considered reckless, i.e.
2 
Risky or ‘at-risk’ behaviour is when putting people at an unjustifiable risk of
people make choices that could increase harm. This could also include intentional
risk, or where risk is not recognised or acts, and a willful and conscious disregard
where risk is believed to be justified. to a substantial and unjustifiable risk.
This includes what are often referred These people, Marx suggests, should
to as violations of policies or procedures be sanctioned in some way, but there
and can also include forms of negligence. also still needs to be learning from why
Marx writes that staff who exhibit risky people behaved in the way they did
behaviour should be asked about their and the choices they made.

Dekker (2014; 2017) believes there is no intent whatsoever external bodies, including
that it is more helpful to to harm anyone. In all these the relevant professional
distinguish actions and choices cases, the actions and choices regulator(s) and the police.
as being either unintentional made should be understood
The terms ‘blame’ and
(the vast majority) or before being judged and
‘accountability’ are often
intentional (the very rare). people should be supported to
used interchangeably; this
learn from them. Furthermore
He and many others believe can lead to opportunities for
they should be asked for their
that the vast majority of learning to be missed. Brenner
advice and help to design the
people who work in health (2018) provides the following
systems that could help change
and social care wish to provide definition: ‘Blame is to be
things for the better.
the very best care they can, accountable in a way deserving
given the circumstances they However, this does not mean of censure, discipline, or other
are working in, and that there an absence of accountability. penalty … accountable does
is no intent to provide care The very rare person who not mean “blame-able”.’
that did not go as expected does make an intentional act
or planned. And that such of harm should be dealt with
incidents are unintentional and responsibly and referred to

22
 Context and theory

Brenner (2018) also states Dekker (2017) suggests that, in These are three very
that accountability means to order to achieve a restorative powerful questions that
be answerable and responsible just and learning culture in refer to everyone: the
for an activity, and the terms the aftermath of when care staff involved, the patients
accountability and blame has not gone as expected and their loved ones.
differ as follows: or planned, three questions
should be asked:
Learning versus punishment
If blame is the goal, any • who is hurt?
investigation tends to stop
• what do they need?
after the ‘culprit(s)’ have been
identified and the opportunity • whose obligation is it
for learning is lost. to meet that need?
Climate of fear
Where staff express fear
of accountability; this can
be a strong indicator of a
blame culture.
 rganisational chart
O
altitude distribution
Where accountability for
actions is mainly focused
at the bottom of an
organisational structure;
it is where blame is likely
to be assigned.
Acknowledging
interdependence
Recognising that all those
accountable for an incident
will commonly result in a long
list, as incidents are usually
linked to system failure and
not individuals.

23
NHS Resolution Being fair

24
 Impact on staff

Section 3
Impact on staff

Inequity
A just and learning culture In researching the causes of staff (n = 3,854) did so
requires a balance of disproportionate disciplinary (NHS Equality and Diversity
learning with accountability action in the NHS against Council 2017)
and assurance that staff BAME staff, Archibong and
• According to the NHS
and organisations take Darr (2010) found, in their
ESR data, it is more likely
responsibility for making report for NHS Employers, that:
that some staff will enter
changes to help people work
’...line managers found it disciplinary investigations
safely. Threats to this kind of
difficult to deal with issues in some trusts compared
culture are apparent when
relating to disciplinaries to others. In addition, it
staff are inappropriately
and there were often is, on average, 1.24 times
blamed or face suspension
inconsistencies in the more likely (2017-18) that
following an incident, or are
application of disciplinary BAME staff will enter the
subjected to disciplinary action
policies… It was perceived that disciplinary process (i.e.
and sometimes dismissed.
managers were more likely to be subject to a formal
Too often people involved
discipline B(A)ME staff over investigation) than their
in complaints, incidents and
insignificant matters and that white counterparts across
claims are not supported, and
disciplinary concerns involving trusts in England (NHS
instead they potentially face
staff from minority ethnic Equality and Diversity
disciplinary processes which
backgrounds were not always Council 2019)
can lead to a culture of fear
considered to have been dealt
of speaking out. • In 30 trusts (13%) more
with fairly and equitably by
than 2% of white staff
In addition, research has shown human resources managers.’
entered the disciplinary
that different individuals can
ESR (Employee Staff Records) process and in 77 trusts more
also experience inequity and
data show there is very than 2% BAME staff did so
discrimination, and suffer
significant variation between
disproportionate levels of • This is an improvement on
NHS Trusts regarding the
disciplinary action, in particular the previous year (2016-17)
likelihood of staff being
black, Asian and minority whereby it was on average
disciplined or suspended.
ethnic (BAME) staff groups. 1.37 times more likely that
This can impact not only on • In 2016-17, NHS Trusts in BAME staff entered the
the individuals involved, but England (98.7% n=232 of disciplinary process
on the teams they work within, 235) reported that almost
• In 70.1% of trusts, the
and even the wider teams 16,000 staff entered the
likelihood of BAME staff
across the organisation and formal disciplinary process.
entering the disciplinary
subsequently on the patients 1.3% of white staff (n =
process was more than for
they care for. 11,857) and 1.7% of BAME

25
NHS Resolution Being fair

white staff and in 59 (27.6%) • A variety of biases and complaint is made, irrespective
trusts, the likelihood of attitudes by people of the potential outcome. This
BAME staff entering the (intentional or otherwise) is now considered a key threat
disciplinary process was influencing which individuals to a just and learning culture,
more than twice as high as become subject to as Lady Justice Hale pointed
for white staff (Equality and disciplinary investigations out in Gogay v. Hertfordshire
Diversity Council, 2019). rather than deploying County Council (2000):
learning conversations ‘…even where there is
There might be a number
where this would be more evidence supporting an
of reasons why this is the
appropriate (Archibong investigation, that does not
case, including:
and Darr 2010) mean that suspension is
• All staff, including some automatically justified.’
• Some jobs that BAME
BAME staff recruited
staff undertake may, Involvement in incidents
recently from abroad, may
irrespective of ethnicity, and complaints can also
not be adequately trained,
be those most likely to significantly impact on
managed or supported
experience disciplinary individuals’ health and
during and following
actions being invoked. wellbeing. A UK study
their induction
showed an association
Fear between staff involved in
• An excessive focus on
blaming individuals rather When things have not gone complaints procedures and
than seeking to address as expected, there is a fear of risks of depression, anxiety
the conditions, factors and being blamed, fear for future and suicidal ideation (Bourne
possible system causes of employment and fear of what 2015). The association is likely
the alleged performance or colleagues, families and friends to be impacted by the length
conduct issues, which might will think (Shorrock 2017). of the disciplinary process.
impact disproportionately Professionals describe feelings
on BAME staff. This may Recent high profile cases of misery and insecurity, both
be because of “protective have significantly heightened during the process and in its
hesitancy”, whereby some this fear, particularly among aftermath. Another study
managers find it difficult junior doctors. The fear is reported that disciplinary
to have honest, informal compounded by feelings of action involving doctors
discussions with some staff, isolation, with the potential can result in anger, guilt,
notably with those from for significant impact on shame and depression, and
BAME backgrounds, which individual staff members (Kliff future ‘defensive practice’
may increase the likelihood 2016). There are numerous (Cunningham 2011).
of those staff facing formal cases cited of employees being In addition the emotional
investigations rather suspended and prevented from and psychological impacts of
than informal discussions contacting anyone as soon disciplinary proceedings and
(Archibong 2010) as an incident happens or a regulatory processes cause

26
 Impact on staff

immense stress on physical In healthcare this is adding There is a recognised

and mental wellbeing, to a culture of fear and is relationship between a
including physical symptoms preventing people from positive workplace, learning
of short-duration migraines, speaking up. It also affects from excellence, gratitude
skin rashes, irritable bowel morale, and staff health and and appreciation, and
syndrome, cardiovascular wellbeing. The impact on staff improved patient care.
diseases and strokes is considerable, and can affect It is vital that leaders and
(Bourne 2015). cognition, and equally reduce organisations work towards
safety, effectiveness, quality creating a positive culture
Incivility and bullying
of work and productivity by that recognises and rewards
A further threat to a just the affected staff member(s) success and kindness. What
and learning culture is the as well as those who observe is needed is a culture where
way people behave towards this behaviour. Incivility is everyone, no matter where
each other on a day–to-day therefore harmful to both staff they are within the hierarchy,
basis, in particular rudeness, and to patients (Turner 2018). is respectful, kind, caring and
incivility, lack of kindness civil towards one another.
Sadly, the scale and impact
and even bullying.
of bullying in healthcare is
There is growing well documented. Almost a
understanding of the issue quarter of NHS staff report
and impact of incivility and being bullied at some point
rudeness in the workplace. in the previous twelve months.
Incivility is defined as ‘the Bullying and harassment can
exchange of seemingly impact in a number of ways.
inconsequential and A climate of fear can lead
inconsiderate words and to a lack of openness and
deeds that violate conventional willingness among staff to
norms of workplace conduct’ report errors or even share
(Porath and Pearson 2013). concerns through anxiety
It may be the slightest thing, of the consequences. This
a sneer, a look of annoyance, inevitably leads to a less safe
being ignored in the corridor, environment for patients.
being put down in a meeting The impact on the workforce
or the use of belittling can be significant, leading to
language. It can escalate staff members experiencing
to be much worse, such high levels of stress,
as humiliation in front of unhappiness and burnout
others and lead to bullying. and, ultimately, leaving
the profession.

27
NHS Resolution Being fair

Section 4
Claims

Claims related to staff stress and bullying

The last five years have seen a The cost alone does not
number of claims notified to illustrate the emotional impact
NHS Resolution (see Table 1) and consequences to the staff
in relation to staff stress and member, the organisation in
bullying. The defined costs which they work, the patients
below do not account for any that they may have to care
associated costs for sickness for, and their colleagues and
absence, any replacement family members.
staff costs to cover duties or
resources for investigation
and management.

Table 1: Numbers of all claims by date of notification and annual cost

Notification Year Number of Claims Total Claims Value (£)

2013/14 67 3,096,707

2014/15 81 3,022,488

2015/16 68 6,624,735

2016/17 57 4,890,787

2017/18 44 9,844,286

Grand Total 317 27,479,003

• All claims notified to NHS • There is commonly a time • T

 hese 317 claims cover a
Resolution. The figures lag from the incident to range of incident dates, with
represent the value of the claim being notified over 50% of them being in
the claims registered. as a claim to NHS Resolution the years 2013 to 2018.
Some 91 cases are under and then resolved
investigation, in 92 cases
damages were paid and
in 134 cases damages were
not paid

28
 Claims

The majority of staff members 105

making these claims were Women
employed in NHS organisations, Men
Total claims =
the majority being from Acute
317
or Foundation Trusts which
Of all 317 claims,
included 36 mental health
212 212 were from
organisations (Table 2).
women and 105
from men.

Table 2: Number and value of claims by type of NHS organisation

Organisation Type Number of Claims Total Claims Value (£)

Foundation Trust 155 13,794,280

Acute Trust 131 10,885,969

Special Trust 14 1,490,617

Community Trust 11 997,070

Clinical Commissioning Group 6 311,068

Grand Total 317 27,479,003

29
 NHS Resolution Being fair

The 317 incidents covered a whole range of staff, illustrating

the extent of the issue and highlighting that it can affect
staff at any level or role within an organisation (Figure 1).

Figure 1: Claims notified to NHS Resolution 2013 to 2018 (n=317)

120
108
100
Number of claims

80
65
60
40 43
40
25 26
20
4 6
0
Admin AHP Doctor Facilities Manager / Nurse / Other Unknown
Exec Midwife

The numbers are significant • Failure to provide a safe • F ailure to carry out suitable
and are driven by a range of system of work and have or sufficient assessments
avoidable factors in relation regard for staff members’ of the risks to the staff
to how staff are supported. mental health and members’ mental health
These include: personal safety
• F ailure to implement any
• Failure to follow policies • Failure to follow adequate preventative or
effectively relating to recommendations set protective measures for the
investigations and out in the investigation safety of staff members.
workplace stress report which caused
the staff members’
• Failure to follow advice
trust and confidence
given by Occupational
to be undermined
Health and conduct a
timely investigation,
grievance or appeal

30
 Claims

Descriptions of harm within these claims include:

1 Work-related stress – staff member was subjected to bullying and

abusive behaviour by a consultant

2 Work-based stress resulting in suicide

3 Stress at work caused by workload and lack of resources

4 Staff member felt they were obliged to work excessive hours

leading to suffering a stress-related illness

5
Following the death of a patient and subsequent investigation by the
Trust, staff member felt isolated during suspension. This resulted in a
significant psychiatric injury compelling them to seek early retirement

6 Depression, anxiety and work-related stress resulting from changes

in role

7 Stress arising from failure to pay regard to complaint by staff

member regarding staffing levels

31
NHS Resolution Being fair

Section 5
Suspension, exclusions and professional regulation

Suspension / exclusion
The National Audit Office on poor, unnecessary or assumption that the employee
(NAO 2003) examined inappropriate disciplinary suspended in this way is
suspension in the NHS and investigations, suspensions, guilty and look for evidence
the cost of disciplinary action hearings, appeals and legal to confirm it’ (Crawford &
taken in 2003. While this audit costs is considerable. In 2012, Anor v Suffolk Mental Health
was over 15 years ago, the almost a decade after the Partnership NHS Trust 2012).
findings related to the impact NAO published its report on
The Practitioner Performance
of suspensions or exclusions are suspensions, the Court of
Advice service at NHS
still relevant today. Appeal felt obliged to flag
Resolution (formerly known
The NAO found (in the year their own concern stating:
as the National Clinical
prior to publication, i.e.
‘the almost automatic Assessment Service, NCAS)
in 2002) that 1,000 clinical
response of many employers can be contacted for advice
staff were suspended for,
to allegations of this kind where a healthcare orgnisation
on average, 47 weeks for
to suspend the employees is considering excluding,
doctors and 19 weeks for
concerned, and to forbid them suspending or restricting a
other clinical staff. The cost
from contacting anyone, as practitioner’s practice. Where
estimated in terms of lost staff
soon as a complaint is made, patient safety is considered
time, replacement staff, and
and quite irrespective of the to be at risk or where there
administrative costs was in
likelihood of the complaint are allegations of serious
excess of £40 million per year.
being established… They misconduct, we work with
Also in 2003, Hoel et al. will frequently feel belittled healthcare organisations
examined the internal costs of and demoralised by the total to help them consider the
one specific but typical local exclusion from work and options available to them
government employment the enforced removal from to understand and address
relations case. The case their work colleagues, many the concerns, and to help
involved the bullying of a of whom will be friends. ensure that their decisions are
graphic designer. It is argued This can be psychologically reasonable and proportionate
that a disciplinary case is likely very damaging. Even if they to the circumstances. Where
to have similar costs. Excluding are subsequently cleared of exclusion, suspension or
lost productivity and the costs the charges, the suspicions restriction is thought to
of any lump sum settlement, are likely to linger, not be appropropriate we will
ill health early retirement, least I suspect because the continue to work with the
litigation or external legal suspension appears to add healthcare organisation to
advice or subsequent litigation, credence to them. It would routinely monitor the position
their calculation of the cost be an interesting piece of and advise on good practice,
was £28,109 (or £44,125 in 2019 social research to discover to taking account of local and
prices) (Hoel et al. 2003). what extent those conducting national policy requirements.
disciplinary hearings
For the NHS, the amount
subconsciously start from the
of time and energy wasted

32
 Suspension, exclusions and professional regulation

Professional regulation
Referrals to professional
regulators may be a further
However the costs to
measure taken as a result of
employers (and staff) include
what employers believe may
so much more than the cost
be concerns about fitness to
to the professional regulator.
practice. These have been
They will include:
increasingly subject to public
scrutiny with some regulators • staff cover costs (agency,
acknowledging the importance locum, replacement costs)
of a focus on learning, not
• the likelihood of
blame and an increasing
‘presenteeism’ costs – where
acknowledgement of the risks
sick staff carry on working
of discrimination (NMC 2018).
rather than taking time off
The cost of cases involving to recover
a referral to a professional
• the cost of other staff
regulator may be considerable.
affected by the suspended
The NMC reported that
member of staff leaving
‘through efficiencies to our
(increased effort, increased
processes in 2016–2017 the
workload, increased stress
average cost of a hearing fell
and decreased morale)
from £25,000 to £18,000’ (NMC
2017). • the cost of management
and other people’s time
preparing for the case
• the considerable cost of
legal advice
• replacement costs if the staff
member leaves
• productivity costs.

33
NHS Resolution Being fair

Conclusion

The aim of this paper is to help leaders of all health and social care organisations
to understand how they can support staff when things don’t go as planned.
The paper provides the latest thinking, ideas and prompts which will, in turn,
help to drive a just and learning culture within health and social care.

It is also hoped that this paper It is hoped that this paper will At the heart of this are the
will lead to an avoidance of start the conversation which rights of patients and their
inappropriate disciplinary will lead to a significant change families to an apology, an
action against staff, including in mindset and attitudes to explanation and to be involved
in particular those from BAME the prevailing practices in large in any subsequent reviews or
backgrounds who appear to be parts of the NHS to benefit investigations. They also have
disproportionately subject to staff and patients. the right to seek assurances
such action. and financial compensation
A just and learning culture
where appropriate.
The paper has highlighted is for all: staff, patients and
why this is important and organisations. It is not only
demonstrated some of the about safety; it is about how
impacts on staff when support we treat each other, every day.
is not in place and the need to
When things do not go as
ensure consistent, equitable
planned, patients’ physical and
approaches across all staff
mental health, and wellbeing
groups regardless of the
will always be of paramount
profession or setting.
concern to healthcare staff.
It has summarised some of
This is embedded in the
the evidenced ways this can
questions that Professor
be done and shares examples
Dekker suggests: who was
where a few NHS organisations
hurt, what do they need and
have implemented practices
whose obligation is it to meet
that emphasise learning rather
the need?
than blame.

34
 Conclusion

Acknowledgements

This guidance was co authored by:

− Dr Denise Chaffer, Director of Safety
and Learning, NHS Resolution
− Roger Kline OBE, Research fellow,
Middlesex University Business school
− Dr Suzette Woodward, Director,
Sign up for Safety campaign

Significant contributions from:

− Amanda Oates, Director of Human
Resources, Mersey Care
− Oyebanji Adewumi, Barts Health Care
− NHS Improvement Patient Safety Team
− Tracy Coates and Alison McLellan,
(previously NHS Resolution Safety and
Learning Leads)
− Plus participants of a workshop hosted
by Weightmans
− Peter Walsh, AvMA, (contributions
from AvMA to the ‘Just and Learning
Culture Charter’)

35
NHS Resolution Being fair

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