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New Rights for Whistleblowers Applying for Jobs in NHS

Whistleblowers applying for jobs in the NHS will have valuable new rights and protections under draft legislation now laid before Parliament.

The legislation, not yet in force, will provide whistleblowers seeking re-employment in the NHS with new rights to claim compensation and even seek an order restraining an NHS employer from discriminating against them. This will present a serious challenge to NHS employers who reject applications from former whistleblowers and frankly it’s not unreasonable to say, about time too.

Background

Current law protects workers against detrimental treatment for blowing the whistle, but this does not include applicants for jobs. The fear of losing your job but then not getting another in the NHS is a very real concern for whistleblowers and in my experience, a serious deterrent to speaking up. Anxieties with regard to gossip, blacklisting and information being passed around backchannels within parts of the NHS are often profound. 

The draft legislation – the Employment Rights Act 1996 (NHS Recruitment – Protected Disclosure) Regulations 2018 – can be traced back to Sir Robert Francis QC’s report of 2015 (“Freedom to Speak Up”) which considered how to build an open and honest reporting culture in the English NHS.  Sir Robert’s review recommended that the Government should introduce protections from discrimination for people seeking NHS employment on the basis that they were “perceived” to have blown the whistle.

Important new rights

The new law prohibits a NHS employer, including a Trust, from discriminating against an applicant for a job, because it ‘appears’ they have made a protected disclosure (blown the whistle).  So, it does not matter if the prospective employer was mistaken and the applicant had in fact, not blown the whistle.

Helpfully, from the perspective of the applicant and in contrast to the general run of whistleblowing law, if an Employment Tribunal is persuaded there are facts from which they could decide, in the absence of any other explanation, that a prospective employer did discriminate, then they must find a breach of the legislation occurred unless the employer shows that it did not do so.  This introduces a reverse burden of proof akin to that found in equality law, and ought to make it harder for NHS employers to defeat claims.

There are also powerful new remedies. A job applicant will be able to claim uncapped damages and seek a recommendation that the NHS employer takes steps to obviate or reduce the adverse effect of the discrimination on the applicant.

The real potential game changer tucked into the legislation is the ability of an applicant to also bring a claim in the County Court or the High Court for breach of statutory duty, in respect of the same conduct, to restrain the prospective employer from contravening the regulations.  Whereas, it is not entirely clear how this will work in practice, an order analogous to an injunction could be viewed as the last and best option. This also places applicants for NHS jobs in a more favourable position than NHS workers or employees who can only apply for interim relief in the Employment Tribunal, to continue their employment until their unfair dismissal claim is heard (but which requires meeting a difficult test in a notoriously unpredictable hearing).

Whilst these regulations are not yet in force, assuming any amendments are minor, there is no doubt they are likely to provide whistleblowers applying for jobs in the NHS with valuable rights and powerful legal options, and ought to go some way to cultivating a more open reporting culture.  Those of us who advise vulnerable whistleblowers in the NHS know the status quo is just not acceptable.

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