Whistleblowing Rights for Junior Doctors in Training: Clear as Mud

 This document concerns the BMA’s recent guidance on the extent to which junior doctors are protected from retaliation following their blowing of the whistle. In particular, this paper is concerned with the recent FAQ: Whistleblowing & Junior Doctors. [1] It is the opinion of Public Concern at Work (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.

The background to the FAQ is that Health Education England (HEE), the NHS body which oversees junior doctors’ training, included a contractual right (within their training agreement with junior doctors) giving them the right, in the civil courts, to sue HEE for victimisation related to whistleblowing.

This contractual right was introduced in response to Dr Day’s continued legal fight to include the training relationship between HEE and junior doctors are recognised as a worker/employer relationship for the whistleblowing protection law.  Dr Day was a junior doctor on the specialist consultant pathway, who raised concerns about staffing levels and claimed he was then forced off the HEE training program as a result. Prior to the Day case, it was clear that in instances where HEE victimised a doctor for blowing the whistle, the doctor in question would have no effective remedy.

Commentary on the FAQs

Below is commentary on specific clauses from the FAQs:

The BMA over emphasis the advantages of the new contractual right

The BMA make arguments that the new contractual right is more effective than extending the current legal protection (the Public Interest Disclosure Act (PIDA)) to cover doctors in training.  This in our view is inaccurate. While the new contractual right has some benefits for BMA members which the FAQs identified as the following: 1) it avoids the legal difficulties of proving HEE are an employer as it is an accepted contractual right 2) the time limit is extended by a month, and 3) successful claims mean that legal costs are recoverable; these modest advantages are outweighed when compared to the disincentives of bringing a claim in the civil courts – as opposed to the specialist employment tribunals – and the strong, and more established, protection provided by the Public Interest Disclosure Act 1998. 

Problems with the civil court forum

Legal costs are applicable to both sides at the civil court, claimant and respondent.  This is not an issue if the BMA are providing a lawyer as they will cover the legal fees.  It offers a big financial risk of paying the other side’s fees for non-BMA-member junior doctors or junior doctors like Dr Day who progress their case without the support of the BMA, if they lose their case. 

The Employment Tribunal in contrast is a non-cost environment, where costs are only awarded where either claimant or respondent behaves in a vexatious or malicious manner.  This is a big difference. Many whistleblowers pursuing legal claims will usually have the financial uncertainty of having lost their job, and the threat of costs will pile more pressure leading to many dropping their case altogether.      

As it stands the rights exists on its own between HEE and junior doctors, there is no case law or even a lot of details in the agreement itself, dictating how it is to work in practice.  Compare this lack of detail with PIDA which has been on the statute books for 19 years with case law demonstrating how it operates in practice.  The contractual right’s uncertainty has not been highlighted in the FAQs.Another layer of uncertainty comes from the fact that the HEE decision to create this contractual right fractures whistleblowing protection, as claims against your employer would be covered by a different system, in a different court.  In practice, this situation will cause confusion and legal uncertainty for junior doctors in training because there could be a situation where there is an action against HEE in the civil court, and a possible claim in Employment Tribunal against the NHS organsiation the doctor worked for day-to-day. This duplication of cost and stress would be potentially destructive to a claim of this kind.  The benefit of PIDA is it provides one clear route to apply for compensation for whistleblowers.  This is a fact not addressed in the FAQs.

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. It is incorrect to assert the civil courts are a better forum and clearly ignores how Employment Tribunal remains the forum of choice for the vast majority of workers, despite the already existing potential to bring the majority of employment claims in the civil courts under breach of contract.

The uncertainty, and comparative weakness, of the contractual right

As it stands, the contractual right exists on its own between HEE and junior doctors; there is no case law - or even any detail in the agreement itself - dictating how it is to work in practice.  Compare this lack of detail with PIDA which has been on the statute books for 19 years with case law demonstrating how it operates in practice. 

This uncertainty is likely to be exploited by expensive lawyers on the side of respondents - who will be able to argue that the detriment suffered by the whistleblower is not one covered by the contractual provision; or the type of concerns that they raised are not ones which trigger protection; or any number of the other carefully delineated edges which have developed within the established whistleblowing law.

The contractual right’s uncertainty has not been highlighted in the FAQs.

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

Disingenuous commentary of Dr Day’s case

In commenting on Dr Day’s legal case, the FAQs makes the following statement:

“The Court of Appeal have remitted the Day case back to the Employment Tribunal to consider this on the specifics of his case; this preliminary matter is scheduled for a four-day hearing given its complexity.

Even if Dr Day is successful in showing the Employment Tribunal that HEE were his employer the judgment in that case will only be binding upon HEE in respect of him and HEE could claim that they are not the employer of different doctors, particularly those in other areas of the country where the training arrangements between the doctor and HEE may differ.” 

It’s accurate to state that Dr Day’s case has been remitted to the Employment Tribunal to be considered but it is disingenuous to say that success here will be limited to Dr Day’s situation.  His success at the Court of Appeal in the very least means that the lower courts need to thoroughly examine his employment relationship with HEE, and if he is successful then this will extend PIDA in a sensible way, covering a body that is so crucial in the development of junior doctors. Whilst decisions of the Employment Tribunal are not binding on other courts, they will often be highly instructive.

The BMA position is akin to suggesting that recent, high profile, employment tribunal decisions concerning the rights of individual Uber, Addison Lee, or Deliveroo drivers, will only affect the specific claimants in each case, rather than the rest of each organisation’s workforce, or indeed the wider labour market. It is a self-evidently incorrect position.   

In playing down the implications of Dr Day’s case, the BMA also neglects to highlight the positive effect that it has had on whistleblowing law as a whole. As PCaW has made clear throughout, the legal principles established by the Court of Appeal decision extend into other groups in a similar position e.g. trainee teachers, trainee socials workers etc.  Dr Day’s case has ramifications for the health sector and beyond. 

PCaW is further dismayed at the unnecessary, and inappropriate, tone taken towards Dr Day throughout the FAQ. We are concerned that – in light of the fact that this individual has raised, now verified, serious patient safety concerns, and is currently in a worse position than he found himself before doing so – the BMA risks sending a harmful message as to its attitude towards whistleblowers. Regardless of the merits on either side, this antagonistic positioning is disappointing for an organisation tasked with protecting doctors who speak up.

Conclusion

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. 

We also dispute the view that Dr Day’s case lacks significant to junior doctors in training, quite to the contrary his case will have a profound effect on their rights, a point obviously considered by HEE who moved so quickly to provide a contractual right once his case gained wider exposure.   

 [1]Whistleblowing protection for junior doctors, BMA website https://www.bma.org.uk/advice/employment/contracts/junior-doctor-contract/whistleblowing