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THE REVIEW BY ROBERT FRANCIS QC INTO WHISTLEBLOWING IN THE NHS

Background

The Enterprise and Regulatory Reform Act 2013 ("ERRA”) introduced the first major legislative changes to the whistleblowing provisions in the Employment Rights Act introduced by the Public Interest Disclosure Act 1998. Those provisions afford remedies to workers who are subjected to a detriment or dismissed for making ‘protected disclosures’ of ‘relevant failures’. The principal changes made by ERRA were:- 

  • A disclosure no longer qualifies for protection unless the worker reasonably believes it is "made in the public interest”.
  • But, secondly, protection no longer depends on the disclosure having been made in good faith albeit that lack of good faith can result in a reduction in compensation of up to 25%.
  • Employers are now vicariously liable for victimisation by the whistleblower’s fellow workers, subject to a defence that all reasonable steps were taken to prevent this.
  • Personal liability is also imposed on the fellow worker her/himself.
  • Amendments to include certain healthcare professionals who were identified as outside of the scope of whistleblowing protection due to their contractual arrangements. 

It is worth pointing out that the original drive for change had come from those who wished to restrict protection because they thought the law was permitting employees, particularly in the financial services sector, to cast themselves as whistleblowers when in truth the concerns that those employees were raising – as to their own bonuses for example- were not matters of public interest at all. However during the passage of the bill attention was focused on inadequacies of the protection afforded by the legislation and the need to upgrade it. These inadequacies had been demonstrated by the experience of whistleblowers as revealed in the evidence received by the Francis Inquiry into Mid Staffs Hospital and also the Court of Appeal’s decision, in the healthcare employment case of Fecitt, that employers were not vicariously liable for detriments inflicted by their employees on whistleblowers. Hence the rather more evenly balanced suite of modifications set out above. 

ERRA having passed into law the Department for Business, Innovation and Skills launched a Call for Evidence to see whether further support for whistleblowers was necessary. The evidence duly came in and the Government’s response was published in June 2014 (click here to view). The headline of that response was that the whistleblowing framework in isolation did not always prevent malpractice from taking place and nor did it encourage people to raise concerns. Changes to the legislation would be proposed and these would be implemented through a Small Business, Enterprise and Employment Bill to be enacted by April 2015. But those proposed changes were very limited indeed. There appeared to be no appetite for any further significant legislative reform (albeit policy and guidance initiatives were proposed).

The Francis Review

Once again, however, concerns in relation to whistleblowing in the health sector will be the catalyst for further reform to strengthen legal protection for whistleblowers- at least in the health sector itself. That same month, June 2014, Sir Robert Francis QC was appointed to lead a review into whistleblowing in the NHS. Sir Robert has now published his report. 

 

The report contains wide ranging proposals designed to change the culture of the NHS including the creation of whistleblowing "guardians” in each Trust. But this article concentrates on what Sir Robert says about the law.
Chapter 9 of his report considers the effectiveness of the existing legal framework. Sir Robert was not impressed with the current scheme of protection, describing it as "weak”. However he does not recommend a wholesale review of the 1996 Act for two reasons:- 

  • He believes that legislative change cannot be implemented quickly enough to make a difference to those working in the NHS today; instead there needs to be a change in the culture and mindset of the NHS so that fewer staff will need recourse to the law;
  • His review was concerned only with the position of disclosures made within one part of the public sector, the NHS and he considers that different considerations might apply in relation to other parts of the public sector and the private sector. 

 

In describing the legislation as weak Sir Robert appears to have accepted the view that the present scheme is complex and the concept of a protected disclosure is not easily understood. Sir Robert was told that this complexity can act as a barrier to those who try but fail to understand what protection they have if they choose to raise a concern. Moreover the legislation provides a remedy against past detriment rather than protection against future detriment. Sir Robert makes the observation that it would be extremely difficult to obtain an injunction to prevent detriment occurring. He says there is no evidence that the prospect of an Employment Tribunal case deters victimisation by employers and adds that Employment Tribunals are not the place for patient safety concerns to be heard (although, as Sir Robert recognises, Tribunals can send details of complaints to the relevant regulator).

 

The report points out that orders for reinstatement and re-engagement are not available to workers who are not employees and even in the case of employees, an employer cannot be forced to comply with an order to reinstate or reengage a dismissed employee in particular if they believe it is not practical to do so. But Sir Robert rejected suggestions that employers should be forced to reinstate successful claimants. On the other hand he considers that the provision in relation to blacklisting of trade union activists (Employment Relations Act 1999 (Blacklists) Regulations 2010 and section 104F of the Employment Rights Act) provide a model for the extension of protection to job applicants who have made protected disclosures in previous employments. Sir Robert’s Action point 20.1 is that the Government should, review the inclusion of discrimination in recruitment by employers (other than those to whom the disclosure relates) on grounds of having made that disclosure as a breach of either the Employment Rights Act 1996 or the Equality Act 2010.

To achieve protection in respect of a disclosure made straight into the public domain more exacting thresholds are required to be met (these are contained in sections 43G and 43H of the Employment Rights Act). Sir Robert does not propose any changes to this state of affairs because in his view disclosures to the press should be the last resort.

The Review also calls for the list of prescribed regulators (to whom a disclosure can be made so as to achieve protection under section 43F of the Employment Rights Act) should be extended to include all relevant national oversight, commissioning, scrutiny and training bodies including NHS Protect, NHS England, NHS Clinical Commissioning Groups, Public Health England, Healthwatch England, local Healthwatch, Health Education England, Local Education and Training Boards and the Parliamentary and Health Service Ombudsman.

Sir Robert also wants the government to ensure that its proposal to widen the scope of the protection under the Employment Rights Act 1996 includes all students working towards a career in healthcare. 

The Government’s response

The Secretary of State has responded by confirming that he is accepting all the recommendations "in principle” and will consult on a package of measures to implement them. Specifically he says that the Government will legislate to protect whistleblowers who are applying for NHS jobs from discrimination by prospective employers and says that with Opposition support these necessary regulation making powers could be on the statute book in this Parliament.

Comment

 

Sir Robert acknowledged that the United Kingdom’s whistleblowing legislation had often seen as an exemplar in terms of legislation on public disclosure, the relevant provisions of Employment Rights Act 1996 having been used as a template for laws in a number of countries. But, as already noted, he also describes the scheme of protection as ‘weak’. Except, perhaps, in relation to the somewhat convoluted provisions contained in s 43G ERA it is difficult to see how the existing scheme could be simplified and yet still achieve the widely agreed aim of encouraging "responsible whistleblowing” (although it is necessary to point out that the requirement of a reasonable belief that the disclosure is made in the public interest has introduced a further complexity). As Sir Robert acknowledges the "status” of being a whistleblower is rather different from the status of having a protected characteristic such as gender or race. Outlawing "discrimination” against whistleblowers is never going to be as easy as outlawing discrimination against those having protected characteristics. 

The modifications which Sir Robert does call for can probably be achieved without too much difficulty though it is interesting to note that the Government’s acceptance in relation to job applicants appears to be limited to extending protection to applicants for NHS employment. Given that the NHS has a neo-monopoly of health sector employment there is clearly a very powerful case for helping health sector employees to get back into employment after they have blown the whistle but the case for helping workers in all sectors – public and private- is a fairly compelling one as well. Section 39 of the Equality Act already outlaws victimisation (as well as discrimination) of job applicants as well as existing employees. A whistleblower whose disclosure of a relevant failure took the form of making an allegation that a former employer contravened the Equality Act- ie a "protected act”- can make a claim against a prospective employer if his/her allegation was material factor in the application for new employment being rejected. Extending the definition of "worker” for the purposes of the protected disclosure provisions and including a specific form of detriment in relation to prospective workers akin to those contained in section 39 of the Equality Act for workers ought to be fairly straightforward and it is, perhaps, surprising that the Government did not make such a proposal last year. 

The inclusion of further entities as prescribed persons under section 43F would also appear to be fairly straightforward as well but with, perhaps, one note of caution. Given the quasi market that operates within the NHS as between Trusts and commissioning groups the effect of extending the status of prescribed person to commissioning groups would be to afford the customer the status of regulator and give a protected status to the passing of information by an employee of the Trust to that customer. Perhaps that should not be a concern but one can see that certain Trusts might take the view it is.

Martin Fodder
Member of Littleton’s Employment & Disciplinary and Regulatory Groups
Co author of Whistleblowing, the Law and Practice, Oxford University Press 2012

 

Posted: 13.02.2015 at 09:18
Tags:  Comments  Employment Law  Professional Discipline  On Healthcare
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