23 May 2018

New Regulations Protecting NHS Whistleblowers are coming into force 23 May 2018.

Background

This time last year we provided an update “Doctors and the Law - Blowing the Whistle” reporting on a significant Court case involving a consultant cardiologist who brought Employment Tribunal claims for unfair dismissal after he blew the whistle about unsafe practices at a hospital in England. The whistleblowing legislation (contained in the Public Interest Disclosure Act 1998 as implemented via amendments to the Employment Rights Act 1996) applies UK wide. The consultant had been automatically unfairly dismissed for raising patient safety concerns (“blowing the whistle”) entitling him to potentially unlimited compensation from his NHS employers.

As above, doctors, other practitioners and NHS employees already enjoy protection at work from detriments and dismissal arising from making protected disclosures.

The Government felt that NHS employees needed more protection after they had blown the whistle at work and had left that employment (often by way of dismissal) and were applying for alternative employment with another NHS employer.

We have advised many doctors in this very situation and a pressing issue has always been – “how does the doctor get another job in the NHS after they have blown the whistle on another NHS employer?” This is because doctors employed in the UK by NHS employers and who raise patient safety concerns in the workplace are often viewed as trouble-makers by colleagues and their employer and that is often how a new NHS employer may also view them. Until attitudes change (where a whistleblower is seen as a person doing something good rather than causing trouble) the law will continue to play a vital role in protecting such employees.

New Regulations coming into force 23 May 2018

The new Regulations will protect NHS whistleblowers from discrimination in the recruitment process:

The Employment Rights Act 1996 (NHS Recruitment – Protected Disclosure) Regulations 2018 (SI 2018/579) See https://www.legislation.gov.uk/uksi/2018/579/pdfs/uksi_20180579_en.pdf

Main points from the regulations:-

• The Regulations prohibit certain NHS employers from treating whistleblowers less favourably in recruitment.
• The Regulations prohibit discrimination because of a protected disclosure: “An NHS employer must not discriminate against an applicant because it appears to the NHS employer that that applicant has made a protected disclosure.”
• The Regulations cover all Health Boards in Scotland and all NHS Trusts in England along with many other NHS bodies.
• The Regulations apply both in Scotland and in England and Wales.

We can already see from this wording that there is scope for argument on behalf of the unsuccessful job applicant, since the job applicant does not need to have made a protected disclosure, just that it appears that they have done so.

• Claims by an unsuccessful applicant are made to the Employment Tribunal
• Remedies for a successful claim to the Employment Tribunal include compensation and a declaration of discrimination
• Interdict (in Scotland) and injunctions (in England) are available in court to stop the discrimination occurring

This new extra protection is another tool in the toolkit for those advising and representing doctors and any NHS employee who has blown the whistle or who may be considering blowing the whistle. From 23 May 2018 such individuals will have:

1. protection whilst at work (if they blow the whistle) and
2. protection thereafter if they try to apply for another post with another NHS employer so that they are not treated adversely for having blown the whistle to an NHS employer.

These Regulations follow the Francis Report into whistleblowing in the NHS which recommended new rules to protect whistleblowers applying for NHS posts. These new 2018 Regulations appear to plug that gap and provide that protection. Time will tell.

Early legal advice on such matters is essential whether you are a whistleblower or advising a whistleblower or are the employer requiring to manage a whistleblower at work – please contact:

Contact: Caroline Carr, Partner cac@bto.co.uk T: 0141 221 8012