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JEREMY LEWIS ON NHS APPLICANT WHISTLEBLOWERS: WIDER IMPLICATIONS AND MIS-STEPS EN ROUTE

On 20 March 2017 the Government published draft Regulations with a view to providing whistleblowing protection to applicants for NHS employment [1].  A consultation has been launched. Some two years after the publication of the report by Sir Robert Francis QC into whistleblowing in NHS, Freedom to Speak Up, the draft Regulations aim to implement the recommendation that consideration be given to outlawing discrimination against whistleblowers in recruitment by NHS employers. (Legislation giving power to make these regulations - s.49B of the Employment Rights Act 1996 - has been on the statute book since 6 May 2015).

The draft Regulations may be seen, in some important respects, as pointing to how whistleblowing protection may be strengthened not only for NHS applicants but more generally. They beg some important questions as to why protection and remedies provided for NHS applicants is not also appropriate outside the NHS context, or indeed to workers already in employment within the NHS, as opposed to applicants for employment. But, as currently drafted, they also in significant respects too narrow and add unnecessary complexity.

Limit to the NHS context

Whilst the recommendations in Freedom to Speak Up were understandably focussed on the NHS, it does not follow that the Government needed to restrict protection for applicants for employment to that sector. The consultation document makes the point that the health sector has one of the highest instances of whistleblowing reporting and the greatest potential for victimisation, and is one of the largest employers. But it can hardly be suggested that the NHS is the only sector where those seeking employment may find that being known as a whistleblower will operate as a barrier to obtaining employment. The health sector is not the only context in which it has been identified that there is a pressing need for change to encourage those in a position to blow the whistle to do so, and to feel adequately protected in doing so: see eg the reforms in the financial sector following on from the report of the Parliamentary Commission on Banking Standards, ‘Changing Banking for Good’, 12 June 2013. 

It might be suggested that there is a difficulty in providing protection to applicants because a new employer may find it difficult to see the full picture in relation to disclosures made in previous employment. 

But
  1. the same could apply in the NHS and
  2. even under the current legislation, workers and employees have protection in relation to protected disclosures made in previous employment: see BP plc v Elstone and Petrotechnics Ltd [2010] IRLR 558 (EAT).  No convincing rationale has been provided for limiting protection for applicants to the NHS context. 

Appearance of a protected disclosure

The draft Regulations provide that an NHS employer must not discriminate against an applicant “because it appears to the NHS employer that the applicant has made a protected disclosure.” Applying protection to those who are believed to have made a protected disclosure is a significant departure from the current position, under which establishing that the worker made such a disclosure is central to the scheme of the legislation. The stated intention was to extend the ambit to cover cases where the worker was believed, wrongly, to have made a protected disclosure. But as currently drafted it may also in some cases have a narrower ambit than that applicable to workers (other than applicants for employment).

Suppose a nurse is sacked after making disclosures about safety on his ward. He applies to work for a different NHS Trust, which forms the view, wrongly, that that his disclosures were not protected – perhaps on the basis of a belief that he did not have the requisite reasonable belief as to whether the information tended to show a relevant failure, or as to whether the disclosure was made in the public interest. The Trust decides not to employ him because it takes the view that he would be a troublemaker.  It would seem that, on the basis of the draft Regulations, the Trust could defend the claim by saying that it did not appear to the Trust that protected disclosures had been made. It may well be that the final regulations will be amended so as to provide expressly they apply both where a protected disclosure has in fact been made by the applicant worker and also in the alternative to apparent disclosures. That is the stated intention in section 4 of the consultation document.

There are however further difficulties in basing protection on an apparent protected disclosure. The structure of the protected disclosure legislation is framed around a careful balance as to when disclosures are protected. The reasonable belief of the worker plays a crucial part in this. At minimum, even for internal disclosures to the employer, this requires a reasonable belief (a) that the information tended to show a relevant failure and (b) that the disclosure was made in the public interest. That need not be an insurmountable barrier to extending protection.  In principle protection might also be provided based on the employer’s view that the applicant made the disclosures and that those conditions are likely to have been satisfied.   It does though beg several questions as to the threshold that is to be applied. The employer may have no actual knowledge of the worker’s state of belief, though it may still be possible to form a view as to whether the worker was in a position where s/he ought to have appreciated the true position (see Korashi v Abertawe Bro Morgannwg University Local Health Board [2012] IRLR 4 (EAT)). But a series of possibilities still arise. Is it an answer if the employer has given no thought to whether the disclosure was a protected disclosure?  Is the test one of the employer’s genuine belief? Must the employer have given consideration to each of the elements for a protected disclosure?  Is it sufficient that the employer believes that there is a change that what was disclosed may amount to a protected disclosure?  Does this line of argument allow a worker who fails to meet the criteria for having made a protected disclosure (eg because of lack of a reasonable or genuine belief in the relevant failure) to get round this on the basis that it appeared to the employer (or prospective employer) that s/he had made a relevant failure? That might be said to undermine the structure of the legislation, though to some extent anomalies could be reduced by the approach to remedy. 

In any event, if it is accepted that protection for applicants should cover apparent disclosures, it would be anomalous for the same not also to apply in the case of detriments (or dismissals) of workers and employees. Indeed, once it is accepted that protection should apply where the worker did not in fact make the protected disclosure, it becomes all the more difficult to justify the failure to offer protection to those who are associated with a protected disclosure despite not making it themselves. At present, unlike in relation to discrimination protection under the Equality Act 2010, the legislation provides no whistleblowing protection for a worker who is victimised for supporting another worker who made a protected disclosure. It may be for example that two workers (A and (B) are known to have together been investigating the concern, and one of them (B) then makes the disclosure. If the employer dismisses A because s/he was associated with or known to have supported B in making the disclosure, there would be no protection unless on the facts it could be found that B had acted in effect as A’s agent in making the disclosure.

Injunctive relief

One of the major weaknesses in the protected disclosure legislation identified in Freedom to Speak Up (at para 2.2.9) was the absence of any power to restrain employers from imposing a detriment or requiring it to be brought to an end. The draft Regulations tackle that concern by treating discrimination against NHS applicants as giving rise to a claim of breach of statutory duty actionable in the ordinary courts.  Although generally it is provided in the draft Regulations that there cannot be duplication of claims in the ordinary courts and in the employment tribunal, there is a specific exception to permit an action for an injunction in the ordinary courts to be combined with a claim in the employment tribunal. That is a potentially important addition.  

At least at first blush this might seem to run counter to the usual reluctance grant specific performance of an employment contract, particularly where trust and confidence is lacking.  However the Order made need not necessarily go as far as expressly to require the employer to employ the applicant. So as not to usurp the role of the employer as to the choice of recruit, it might be framed merely in terms of restraining the employer from holding against the applicant the fact of making the apparent protected disclosure. There may well then remain a risk that an employer required to reconsider a decision would reach the same decision not to recruit the applicant. But there would then be the significant added risk for the employer in doing so that this would be found to be in contempt of court.  Further, interim relief associated with this remedy may also be valuable, for example to require that a vacancy remain open pending a speedy trial of the issue, or to restrain the employer from taking into account an alleged protected disclosure in recruitment decisions pending trial.   

However a significant drawback of this remedy lies in the substantial costs risk in pursuing such a claim in the ordinary courts by comparison with the costs regime in the tribunal.  One possible means of improving access to the remedy might be to provide that in such cases the costs regime in the employment tribunal applies.  An alternative, or additional, approach (albeit a radical departure from the current interim relief regime in the tribunal) might be to afford the tribunals the power to grant such relief (even if enforcement powers, including an application for contempt, remained with the ordinary courts).

In any event, again this begs the question of why injunctive relief should not similarly be available for other whistleblowing claims, for example to challenge an ongoing suspension from work or to challenge a dismissal. To some extent that might be answered on the basis that for workers and employees, similar relief could be obtained on the basis of an implied contractual term limiting the proper exercise of discretion: see by analogy Lew v Board of Trustees of United Synagogue [2011] IRLR 664 (where it was noted that it was established that a capability procedure had been trumped up as means of supporting a dismissal, there would be a plain breach of contract).  But the scope for such an implied term in limited in relation to dismissal claims (due to the exclusion set out in Johnson v Unisys Ltd [2003] 1 AC 518 (HL)), and in any event there would be a benefit of certainty in being able to pursue a breach of statutory duty claim.

Anomalies as a result of adopting a discrimination model

Given the existing protected disclosure legislation, the most straightforward approach would have been to amend the definition of worker so as to cover applicants for employment. That could have been accompanied by any other extensions to protection or remedies considered to be appropriate. Instead, as foreshadowed in s.49B ERA, the Government is proposing to graft a discrimination model onto the existing protected disclosure provisions.  At least as presently drafted, that gives rise to unnecessary complexity and to anomalies as between applicants and workers/employees, added to the discrepancy in the difference in treatment between NHS applicants and applicants for employment in other sectors. 

In addition to the new and distinct approach to apparent protected disclosures and to injunctive relief, there are several other aspects of the proposals that would give rise anomalous differences as between applicants for NHS employment and other workers or applicants:

  1. The discrimination approach imports a comparison by expressly introducing a test of whether the applicant has been treated “less favourably” (s.49B(3) ERA). That seems unnecessary.  There would seem to be no good reason why the same test as in s.47B ERA cannot be applied; whether the worker has been subject to a detriment by any act or deliberate failure to act on the ground that the worker made a protected disclosure. The tests may usually lead to the same result, but then why use different tests at all?
  1. Time limits. For workers and employees, if a claim is not brought within the primary three month time limit, it is necessary to show that it was not reasonably practicable to do so (s.48(3) ERA).  Yet for applicants (adopting the discrimination model) there is the less stringent test that the tribunal can consider the complaint if it is just and equitable to do so. There may be good arguments for applying that looser test. But there seems no sensible reason for differentiating between the test to be applied for applicants for NHS employment and that for workers/employees.
  1. Recommendations: the provisions introduce the power to make recommendations that, within a specified period, the NHS employer should take steps for the purposes of obviating or reducing the adverse effect on the applicant of the discrimination to which the proceedings relate. This a welcome proposed improvement on the range of remedies available.  But although it emulates the protection provided in the Employment Relations 1999 (Blacklists) Regs 1999, reg 8, there again seems no good reason for that remedy to be restricted to applicants, let alone NHS applicants for employment. Within the Equality Act 2010 (s.124) the power to make recommendations is not limited to applicants.  Equally, given the public policy underlying protection of whistleblowers, there is a strong argument for a wider power (of the type now removed from the Equality Act) to make recommendations.
  1. Accessory liability: One aspect of the model for protection under the Equality Act which might usefully be borrowed for the purposes of whistleblower protection is the wider range of accessory liability, which extends beyond the employer to liability for instructing, causing, inducing and aiding contraventions (sections 111,112 EqA). However the draft Regulations contain no provision to extend liability in this way.
  1. Individual liability: Far from extending the range of accessory liability, the draft Regulations are narrower in this respect than under the protected disclosure detriment provisions (s.47B(1A) ERA). In the case of a worker or employee, a claim can be brought against the individual worker or agent through which an employer is vicariously liable.  No such provision is contained in the draft Regulations. 
  1. Statutory defence for vicarious liability. The draft Regulations provide, in relation to vicarious liability, that it is a defence for the NHS employer to show that it took all reasonable steps to prevent the worker from doing or failing to do the thing giving rise to the liability or things of that description.  This mirrors the statutory defence in protected disclosure detriment claims, but with the modification that it applies not only to vicarious liability for workers but also for agents.  That is a sensible extension.  But it would make sense for the same to apply to claims by workers and agents, rather than only applicants.  As a matter of public policy it would have the positive effect of encouraging employers to make their whistleblowing policy available to agents rather than only to their workers.

Conclusion

Although the draft Regulations and consultation paper are intended to apply narrowly to NHS applicants, they should serve to bring into focus broader questions as to the adequacy of whistleblower protection.  There is no convincing reason for limiting protection for applicants for employment to the NHS field.  The provisions point the way to important respects in which protection may be improved more generally.  But by declining to follow a more straightforward model of extending protection against detriment more widely, the draft Regulations introduce avoidable complexity.  That is particularly regrettable given that in “Freedom to Speak Up” (see para 2.7.2), one of the criticisms made of the current whistleblowing provisions was as to their complexity. 

Jeremy Lewis, together with John Bowers QC, Martin Fodder and Jack Mitchell, is co-author of Whistleblowing, Law and Practice, the 3rd edition of which is to be published imminently.

[1] See https://www.gov.uk/government/consultations/protecting-whistleblowers-seeking-jobs-in-the-nhs

Posted: 21.03.2017 at 15:47
Tags:  Comments  Employment Law  Professional Discipline
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