Jeremy Hunt: Protecting NHS Whistleblowers, except Junior Doctors

Section 43A-L of the Employment Rights Act 1996 provides that if a worker is subjected to a detriment because of their whistleblowing they have a right to complain to an employment tribunal; it is an important right that – however inadequately – provides some assurance that a worker will not be penalised for raising concerns in the workplace.

The public policy reasons for such protection are nowhere better revealed than in the persons to whom we trust our health, namely the many healthcare workers in the NHS since any mistakes or safety issues could, literally, make the difference between your or my life of death. And yet, as the circumstances of the failures of care at Mid Staffordshire NHS Foundation Trust and subsequent reviews make clear, it is here that whistleblowing protections are in need of especial protection.

Which brings us to the disturbing case of Dr Chris Day. Dr Day reported safety failings in the hospital in which he worked, failings which Dr Day felt posed a real risk to the safety of hospital patients. As a Junior Doctor, a deanery Doctor, Dr Day’s career progression was dependent on training from Health Education England (HEE), an NHS body but not a body Dr Day was employed by. Shortly after Dr Day blew the whistle his training dried up and with it any prospect of becoming a Consultant. Dr Day believed HEE’s action were because of his whistleblowing and sought to bring an employment tribunal claim that he had been subjected to a detriment because of making a protected disclosure.

In preliminary hearing the tribunal ruled that since Dr day was not employed (either as a worker or employee) by HEE he could not bring a claim against them. As the campaign website 54000 Doctors points out, if accepted, then many junior doctors could be dissuaded from speaking out about patient safety because, if they were to do so, their careers could be destroyed by HEE and they would have no legal redress. Unfortunately, in a judgement earlier this month that is precisely what the Employment Appeal Tribunal found (Day v Lewisham and Greenwich NHS Trust & Anor). The definition of worker in the ERA 1996 excludes the relationship between Dr Day and HEE and appeals to a purposive approach to statutory interpretation failed.

Having read the case there are two comments I would make.

First, the case, which was disappointingly brought without BMA support, was always likely to be lost – valiant though the appeal to purposive approaches was there is no EU protection for whistleblowers so the analogy with the Equality Act was going to be tenuous.

Second, however “right” the decision may be from a statutory interpretation point of view it is plainly wrong from a public policy and political viewpoint. I hope the appeal can proceed (as it is only at the higher appellate levels there is any prospect of this injustice being righted) but the issue is as much political as legal. I have raised the matter with my MP and I would urge others to do the same with their MPs.

The fact is I do not know whether Dr Day was subjected to a detriment because of his whistleblowing by HEE. However, what I do fervently believe is that as a matter of public policy it cannot be right that a public body could subject a worker to a detriment and destroy a career and warn off thousands of other Doctors from speaking up in order to improve patient safety without any possibility of that Dr challenging that decision. That is not only a disservice to junior doctors but could also place patients at risk or serious harm.

Cases Referenced

Day v Lewisham and Greenwich NHS Trust & Anor [2016] UKEAT 0250_15_0903

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