Letter from Dr Day’s lawyers to Health Education England on the BMA/HEE whistleblowing clause with an invitation for them to withdraw their resistance to leave being granted in the Court of Appeal.
On 10 August 2016 both the Department of Health and the BMA claimed to have secured the closure of an apparent gap in junior doctor whistleblowing protection that they had both spent over a year denying the existence of. Judgments in the Day v Lewisham and Greenwich NHS Trust case that first identified the problem date back as far as February 2015.
On 17 May 2016, the Department of Health were asked to comment on junior doctor whistleblowing protection on ITV News. They responded on the programme with the following statement, this position was in direct contradiction to tribunal judgments.
“Junior doctors are fully protected by whistleblowing legislation”
On the recent BMA/HEE “closure of the loophole” that has been hailed as “a win” for junior doctors, BMA barrister Sarah Keogh expressed a view in a recent Junior Doctor Committee meeting that seemed slightly less enthusiastic than the BMA party line. The BMA acclaimed “closure of a loophole”, which only amounts to a third party contract clause, with no effect on whistleblowing law, was described by Sarah Keogh as:
“A stop gap provision…until such time as there is a definitive answer elsewhere”
In the meeting, Ms Keogh didn’t seem to see the problem with a clause that forced a doctor to split the facts of their case between 2 separate proceedings in a tribunal and a court just to effectively claim unfair dismissal from their long-term NHS employment. We use the word effectively because Ms Keogh conceded that the clause wouldn’t actually enable an actual unfair dismissal claim or re-instatement should the doctor’s case succeed.
When it was suggested to Ms Keogh that a doctor without BMA support might find it far more challenging if not impossible to represent themselves in the High Court as compared with the cheaper and less formal Employment Tribunal, she did not appear to acknowledge the problem stating,
“you can represent yourself in either of those forums”.
When referring to the Day case that caused the effective gap in the law she stated,
“We are stuck with that decision unless it is successfully appealed"
The BMA are refusing to support an appeal that if successful would provide a definitive answer to this apparent gap in the law.
Below is a letter from Dr Day’s lawyers to Health Education England that calls on them to stop resisting his application for leave, to enable this important issue to be clarified by the Court of Appeal in the interests of patients and doctors.