BMA stance on whistleblower protection 'misguided', claims charity

16 November, 2017 BY SHAUN LINTERN

  • HEE and BMA changed junior doctors’ contracts last year to give right to sue HEE if they are victimised for whistleblowing
  • Public Concern at Work says changes are not as robust as extending protection under existing legislation
  • Charity says BMA’s position is “overly optimistic” and “risks harming the confidence of doctors”
  • Union insists whistleblower protections are “robust” and “comprehensive”

Whistleblowing charity Public Concern at Work has raised fears over the level of whistleblowing protection for junior doctors.The charity has criticised a contractual agreement between the British Medical Association and Health Education England, which it says risks fragmenting protection rights and is not as robust as extending protection under the Public Interest Disclosure Act to doctors and their relationship with HEE.

Last year, HEE and the BMA agreed to change doctors’ contracts to give them a contractual right to sue HEE if they were victimised for raising concerns, following concerns over whistleblowing protection for trainees.

The issue was brought to light by the case of Chris Day who went to the Court of Appeal to win the right to challenge HEE at an employment tribunal. PCAW joined the court case arguing there were wider issues at play for workers who had similar indirect relationships with organisations that, like HEE, could determine the progress of their careers.

The BMA has produced an FAQ document for its members, which PCAW has analysed. The charity said: “Our view is that the BMA’s position on the contractual rights is misguided because it is overly optimistic about the effectiveness of the new contractual rights for junior doctors in training. It is still unclear as to how this contractual right will work in practice given the risk of costs and the lack of case law.”

It added: “It is the opinion of PCAW that the position taken by the BMA is not only largely incorrect but disingenuous and risks harming the confidence of doctors who find themselves in a position where they need to speak up about patient safety.”

PCAW said the BMA’s claim the contractual agreement with HEE would be more effective than extending the act was “inaccurate”, adding that while the agreement did deliver some benefits for doctors “these modest advantages are outweighed when compared to the disincentives of bringing a claim in the civil courts”. It said this could leave doctors open to legal costs if they lose, unlike in an employment tribunal.

The charity said the lack of case law meant the agreement was untested while the act had 19 years of established decisions behind it.

It added: “It is worth noting that the employment tribunal system was set up for the very reason that the civil courts did not provide an effective avenue for workers to enforce their rights.

“In summary, the contractual right can only be seen as a sticking plaster in place of full statutory rights granted by PIDA.”

A BMA spokeswoman defended the union’s position. She said: “The BMA’s primary concern has always been to ensure the strongest possible protection for junior doctors who raise concerns at work. This is why the BMA negotiated an agreement with HEE that offers contractual protection for whistleblowers, which is enforceable in court.

“These protections are robust, comprehensive and have several advantages over pursing a claim through an employment tribunal, including no need to prove that HEE is an employer for the purpose of whistleblowing, having a longer period in which to bring a claim and the ability to recover costs from HEE.

“These protections extend to all junior doctors in respect of their relationship with the HEE and the agreement is binding.”

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