Junior doctors get new whistleblowing protection after HEE loses court case

5 MAY, 2017 BY SHAUN LINTERN

• Court of Appeal judgement says Parliament cannot have intended to exclude junior doctors from whistleblowing protection
• Ruling effectively means Health Education England could be deemed an employer by employment tribunals
• Dr Chris Day’s case will be reconsidered at employment tribunal stage

Junior doctors have been granted new whistleblowing protection after the Court of Appeal ruled against Health Education England in a landmark case.

Chris Day, a junior doctor who claims he was victimised for whistleblowing by the education and training body, brought the case after an employment tribunal court last year said Parliament had deliberately excluded junior doctors’ relationship with HEE from protection under employment law.

The tribunal effectively said junior doctors did not have an employee/employer relationship with HEE, despite the fact it can take steps to prevent a doctor from progressing in their training career.

In a judgment handed down today, judges said Parliament could not have meant this when it drafted employment legislation and said a new interpretation of the laws was needed to “maximise the protection”.

The court said both NHS trusts and HEE could be properly considered employers if they both substantially determined the terms and conditions for junior doctors. This effectively means HEE could be considered an employer and be open to action through the normal employment tribunal process.

The case prompted widespread concern among junior doctors and last year experts told HSJ the case exposed a gap in protection that needed to be closed. The government has said it will act to improve whistleblowing laws where necessary.

Lord Justice Elias said there was no “obvious rationale” to saying that a person employed by a trust and HEE would not be able to rely on the extended protection against either body.

He disagreed with the earlier employment tribunal decision, saying: “If a training body does not determine the terms and conditions of the worker’s engagement at all, it cannot be an employer within the wider definition. It can subject a whistleblowing trainee to a detriment without the risk of legal sanction.

“A court cannot simply ignore the language of the statute to achieve what it conceives to be a desirable policy objective. But where, as here, some words need to be read into the provision because a literal construction cannot be what Parliament intended, then in my view the court should read in such words as maximise the protection whilst remaining true to the language of the statute.”

He added: “I do not accept… that the worker will have no need for protection against the introducer if he has protection against the end user. That is of no use to him if, as is alleged here, the victimisation comes from the introducer.”

The judges said both a trust and HEE could substantially determine a junior doctor’s terms and conditions.

The court did not consider the facts of Dr Day’s allegations, which have yet to be tested at the employment tribunal stage. They decided to move the case back to the employment tribunal process to decide whether HEE substantially determined the terms of Dr Day’s engagement with Lewisham and Greenwich Trust.

Both HEE and the trust deny any wrongdoing in the case.

HEE has agreed with the British Medical Association new contractual routes for junior doctors to bring whistleblowing claims against it, but this would require a junior doctor taking action in the High Court with the potential for significant costs, unlike an employment tribunal.

An HEE spokeswoman said: “HEE welcomes the decision of the Court of Appeal, which provides clarification in this complicated area of law. The employment tribunal now has to assess the specific circumstances of this case.”

“Whatever the result of further hearings, HEE has shown its commitment to doctors in training being able to raise concerns by putting in place a voluntary agreement that extends whistleblowing rights to all junior doctors and dentists across England.”

“We continue to be clear we did not act to cause detriment to Dr Day as a result of him raising concerns.”

“HEE wants all NHS staff to have the confidence and protection they need to raise concerns about patient safety, which is why we agreed changes with the BMA to extend rights to trainees in this area, regardless of the outcome of these proceedings or individual cases.”