Written by The legal profession prides itself on the principles of integrity, transparency, and fairness. Yet when these values are subverted, the ripple effects extend far beyond the parties involved, threatening public trust in the system itself. Recent employment tribunal cases involving Capsticks, the NHS’s favoured legal partner, have exposed a troubling pattern of tactics that some describe as obstructive, manipulative, and antithetical to the pursuit of justice.
The case of Clive Rennie, who successfully sued NHS Norfolk and Waveney Integrated Care Board for constructive dismissal, stands out as a striking example of how procedural misconduct can undermine the integrity of tribunal proceedings. However, it is not an isolated incident. Stories of procedural impropriety and tactical delays have become increasingly common in employment disputes involving NHS Trusts represented by Capsticks.
A “Car Crash” Defence
In the Clive Rennie case, the tribunal was beset by allegations of dishonesty, non-disclosure of documents, and procedural obstruction. Capsticks denied the existence of investigatory reports crucial to the case, only for it to be revealed that such reports not only existed but were supported by extensive correspondence and a polished final version.
The tribunal judge described the situation as “absurd to the extreme,” with the solicitor-advocate for the NHS accused of making “reckless” and “utterly untruthful” statements. This is a damning indictment of any legal representative, but in the context of a public body, the implications are even more profound.
A Pattern of Obstruction
The tactics employed in this and other cases follow a familiar playbook:
- Delays and Tactics: Many claimants have reported being subjected to last-minute document disclosures or incomplete hearing bundles, leaving them scrambling to prepare. These tactics create an undue advantage for the defence and place enormous stress on the claimant.
- Exclusion of Evidence: Critical exhibits are often omitted from bundles without explanation, forcing claimants to prepare supplemental bundles to rectify omissions—only to face further resistance.
- Late Submissions: Documents frequently arrive just before deadlines or hearings, ensuring claimants have minimal time to review and respond effectively.
These procedural manoeuvres, far from being isolated errors, appear to form part of a strategy aimed at frustrating claimants and exhausting their resolve.
Dual Roles and Bias
One particularly concerning aspect of Capsticks’ involvement in NHS cases is the perception of bias stemming from its dual role in investigations and litigation. In some instances, Capsticks has acted as both the investigator in HR processes and the legal representative in tribunal proceedings, raising serious questions about impartiality.
Claimants frequently report that these investigations appear designed to shield senior management from scrutiny rather than address legitimate concerns. This perception is exacerbated by instances where tribunal panels seem to afford undue leniency to the defence, further undermining claimants’ confidence in the fairness of proceedings.
Suppression and Retaliation
There are also allegations of evidence suppression, with documents that could support claimants’ cases either omitted or rendered inaccessible through technical barriers such as password protection. Claimants have described feeling as though they are being actively retaliated against for pursuing their claims, with the legal process manipulated to discredit their positions.
Such actions, if substantiated, point to a broader cultural issue within the defence strategy: one that prioritises institutional protection over justice and fairness.
The Psychological Toll
The cumulative effect of these tactics is devastating for claimants, who often report significant emotional and psychological distress. The stress of navigating procedural roadblocks, coupled with the dismissive attitude of opposing counsel, exacerbates the already taxing experience of bringing a claim against a powerful public body.
Claimants have described interactions with specific individuals at Capsticks as unprofessional and dismissive, further compounding their frustration and sense of inequity.
A Systemic Problem
The issues raised in cases like Clive Rennie’s and others go beyond individual misconduct. They point to systemic failings in how NHS Trusts handle employment disputes and how their chosen legal representatives conduct themselves. Capsticks’ tactics, while effective in shielding their clients from liability, risk eroding public confidence in the fairness and integrity of the tribunal process.
These concerns are not new, but they are becoming increasingly difficult to ignore. Whistleblowers and claimants alike have raised alarms about Capsticks’ influence within NHS and regulatory processes, accusing the firm of enabling a culture of suppression and institutional protectionism.
A Call for Reform
The outcomes of these cases demonstrate that truth can prevail despite the odds. However, the question remains: at what cost? The tribunal system, designed to provide fair and efficient resolution, is being subverted by tactics that prioritise obstruction over cooperation.
Regulatory and professional bodies must take a hard look at the conduct of firms like Capsticks and their role in employment litigation. Public bodies and their representatives should be held to the highest standards of accountability and fairness. Anything less undermines not only the tribunal process but also public trust in the institutions these bodies serve.
Conclusion
The Clive Rennie case and others like it highlight the urgent need for reform in how NHS Trusts and their legal representatives handle employment disputes. While robust defence is a cornerstone of the legal profession, it must never come at the expense of justice and fairness.
For claimants, the fight for fairness against powerful institutions is far from over. But with increased scrutiny and calls for accountability, there is hope that change is on the horizon. The legal profession owes it to the public to ensure that such tactics are consigned to history and that the principles of integrity and transparency prevail.
Acknowledgement: This article references reporting by John Hyde in The Law Gazette, Lawyers accused of ‘deplorable conduct’ in defending employment claim.
Disclaimer: The views expressed are my own and do not necessarily reflect those of any organisations with which I am affiliated.