The Department of Health is considering new laws which will prevent NHS employers from victimising whistleblowers when they are applying for re-employment.
Currently, if you are applying for re-employment within the NHS and a potential employer rejects you because it believes you have previously blown the whistle, you have no right to compensation in the employment tribunal.
Those that work in healthcare know many people who hold suspicions that they continue to be rejected for NHS jobs because of a past whistleblowing incident - it is no exaggeration to say that blowing the whistle can have life-changing consequences for healthcare staff in the UK.
The new law will prohibit retaliation by NHS employers in the recruitment process, so that an individual can bring a claim because “it appears” that the applicant has blown the whistle. It is not entirely clear what “it appears” means in this context, but it presumably covers a situation where the applicant did not blow the whistle but the potential new employer thinks they did.
So, if and when the new law is introduced, if you suspect you have been rejected because your employer thinks you have blown the whistle (even if you have not), you may have a legal claim for whistleblower compensation.
The proposed new law will provide job candidates with the right to bring a claim in the County Court or the High Court to “restrain the conduct that has occurred, or is likely to occur”. This could be a game changer if it was extended out to all NHS workers and not just applicants for jobs.
The Department of Health has formally recognised that the NHS has one of the highest instances of whistleblowing reporting. For now, the Government is looking to plug a gap in the law, but they should go further in order to deal with the widespread cultural vilification of whistleblowers in the NHS.
I have yet to advise a single person in any job who has welcomed taking the step of blowing the whistle. In fact, they often do everything they can possibly do to avoid it.
In my experience as a whistleblowing protection lawyer, most NHS whistleblowers want to preserve their employment. If courts were given the power to protect whistleblowers from suspension it would strengthen whistleblowing protection considerably and send out a message that NHS whistleblowers are valued as individuals with patient safety at heart.
These new whistleblowing protections should not just be confined to the NHS – other sectors such as the financial services industry would benefit from them too.
Ivor Adair is a whistleblowing employment lawyer with experience advising healthcare professionals in complex claims against the NHS. He works at Slater and Gordon Lawyers in London.
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