Whistleblowing charity Public Concern at Work has intervened in a Court of Appeal case examining whistleblowing protection for England’s 55,000 junior doctors.
The charity, which was involved in establishing the Public Interest Disclosure Act 1998, has been granted permission to intervene in the case of Chris Day against Health Education England. It has warned that if the case is lost it could “substantially undermine” existing whistleblowing legislation.
The Court of Appeal hearing has been brought by the junior doctor and has raised concern among trainee medics after an employment tribunal appeal ruled last year that Parliament had specifically excluded HEE’s relationship with junior doctors from protection under whistleblowing law.
Dr Day claims he was unfairly dismissed by Lewisham and Greenwich Trust for alleged whistleblowing in 2014, and after repeating concerns to HEE it refused to place him at a new trust in London unless he accepted conditions. Dr Day said these were unacceptable. HEE then removed his training number. Both the trust and HEE have denied any wrongdoing.
Public Concern at Work was granted permission to intervene in the case earlier this month and has its own legal team including Thomas Linden QC.The charity runs a national helpline for whistleblowing advice and received calls from more than 2,500 people in 2016.In a statement to the court, PCAW chief executive Cathy James provided examples where organisations were found to be outside employment law. She said:
“In each of these situations an organisation has had the opportunity to retaliate against a whistleblower with impunity. The result of this is that… legislation which was intended to facilitate workplace whistleblowing is undermined and rendered potentially ineffective.”
She said Dr Day’s case will determine important issues around the scope of the Employment Rights Act. Ms James said:
“If the current appeal takes an approach which gives rise to uncertainty as to who is covered by the legislation then this will have a chilling effect on whistleblowing more broadly. In my experience, if there were significant uncertainty, many workers would not take the risk of raising a concern, while employers might be unsure whether or not workers who have raised concerns are protected.
Ultimately, if fewer individuals are protected by the legislation, this will act as a deterrent to the raising of legitimate concerns, and will likely have a detrimental impact on the public interest more generally.”
Student nurses and midwives were granted protection under the law for raising concerns following the 2013 Francis report. Ms James said these changes were a reaction to specific events rather than a “considered and rounded” consideration of the law. She said: “PCAW has had great difficulty in trying to engage the government on this subject and even greater frustration at the way changes have been piecemeal in nature.”
Yesterday, the Department of Health announced changes to legislation to provide NHS staff with greater protection against discrimination after raising concerns. These follow the Freedom to Speak Up review in 2015.
Lawyers told HSJ last year that the ruling by the employment tribunal appeal in Dr Day’s case created a gap in the law that should be closed.In recognition of the gap in protection for junior doctors, HEE has agreed changes to junior doctor contracts with the British Medical Association, which would allow doctors to take HEE to the High Court if they were victimised for whistleblowing. However, this remains a costly and risky route and differs significantly to the right to take a case to an employment tribunal.
All doctors still have whistleblowing protection in line with all other employees when raising concerns against their employing trust, regardless of the outcome of Dr Day’s case, which is focused on the relationship between trainee doctors and HEE. The case is expected to conclude tomorrow.