Junior Doctors Granted New Whistleblowing Powers After Court Intervention

A Court of Appeal ruling means that junior doctors will be granted new protection when whistleblowing.

The landmark case involved Health Education England challenging the position of Chris Day; a junior doctor who claimed he was victimised.

Day had suggested that the education and training body had treated him unfairly, after an employment tribunal indicated that Parliament had deliberately excluded junior doctors’ relationship with Health Education England from protection under employment law.

But now a new judgement indicates that Parliament could not have meant this when it started employment legislation, and asserted that a new interpretation of the laws was needed in order to maximise whistleblower protection.

This means that Health Education England will be considered an employee going forward, and will thus be subjected to the normal employment tribunal process.

The case had prompted fears from junior doctors that protection against whistleblowers could be diluted, but the government has indicated that they will move to improve whistleblowing laws where necessary.

Lord Justice Elias said there was no “obvious rationale” behind stating that a person employed by a trust and Health Education England would not be able to rely on extended protection against either body.

And providing his verdict on the case, Elias indicated that the employment tribunal decision had been fundamentally wrong.

“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.”

Elias outlined the responsibilities of the court with regard to employment law.

“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.”

And the presiding judge finished by outlining the ramifications of the verdict on employers going forward.

“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.”

Responding to the verdict, a spokeswoman on behalf of Health Education England acknowledged that the court’s decision was both valid and binding.

“Health Education England 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, Health Education England 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.”

The spokeswoman was also keen to emphasise that Health Education England had never intended to maltreat the defendant.

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


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