For some reason whistle-blowing law is only located within employment statute. This means it only provides protection from detriment carried out by employers. Attacking the employment status of a particular worker can be an excellent strategy for defending a whistle-blowing claim without having to go near the facts of the case.
For the purposes of expanding whistle-blowing protection, the definition of an employer has been extended to encompass workers that are not employed in a conventional sense. We are using this part of statute to counter the Deanery’s claim to have no substantial influence over the employment of doctors. This particular part of the law is found in Section 43K of the Employment Rights Act and has particular relevance to the NHS. It extends whistle-blowing protection to agency workers, students and people on vocational training schemes. It is designed as a ‘catch all’ category to ensure all who work in the NHS have their careers protected by whistle-blowing law.
The NHS chooses to describe the nation’s experienced doctors below consultant grade as ‘trainee doctors’. This has the potential to cause confusion when considering their employment status and seniority. It can be a struggle for people not au fait with the NHS to tell the difference between what is meant by a medical student and what is meant by a trainee doctor. The former being a university student and the latter an experienced doctor that can be the most senior doctor on a team at night.
The long term employment of trainee doctors is exclusively tied up in an organisation known as a Post Graduate Deanery which is now termed Health Education England (HEE). In my litigation, Health Education England have chosen do deny any substantial responsibility for the engagement of their 54,000 trainee doctors so that they can say that they are not legally responsible for the damage they have done to my career. If this is not successfully challenged, it would leave no NHS organisation with responsibility for the long term employment of the majority of the medical profession below consultant grade.
Trainee doctors can be experienced professionals, they may only be months away from being appointed as a consultant. They can also be parents with families to support. It is wrong for them to have no protection from the only organisation with actual power over their career and long term employment.
Our appeal essentially argues that Deaneries or HEE, by recruiting doctors, supplying them to various Trusts, and monitoring the terms of engagement via an appraisal or ARCP process are in fact acting as an employment agency for the purposes of Section 43K(1) (a) and (2) of the Employment Rights Act. It would then follow that Deaneries are employing doctors for the duration of their training programs for the purposes of whistle-blowing protection.
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