A landmark court victory for doctors in training was won in May that marks a step forward towards ensuring proper whistleblowing protection in England.
This was the focus of an HCSA motion at the TUC Young Workers’ Conference, where Council member Dr Ashley Cowton – the association’s first ever delegate – said: “We believe that Junior Doctors who have the courage to speak out about patient safety issues must be properly protected.
“They must have statutory rights embedded into their terms and conditions to enable Junior Doctors to use the employment tribunals in the clear knowledge of who the respondent is as a result of making a protected disclosure to either the trust or another prescribed body, such as the General Medical Council or the Care Quality Commission.”
It was trainees’ “dual employer” status – involving the trust in which they work and training body Health Education England (HEE) – that led Dr Chris Day to go to court. He accuses HEE of deleting his training number following short-staffing concerns he raised at Queen Elizabeth Hospital, Woolwich, while posted there.
His attempt to hold HEE to account was initially blocked when it maintained that it was not covered by whistleblowing laws as it was not the “primary employer.” An Employment Tribunal agreed, throwing out the case and beginning a two-year court battle backed by a £140,000 crowd-funding campaign.
And in May, the Court of Appeal finally dismissed HEE’s argument and its claim that junior doctors are excluded from statutory protections passed into law by Parliament.
That means that Dr Day can now pursue his claim against HEE in a fresh Employment Tribunal.
Legal support organisation Public Concern at Work (PCW) said the ruling “effectively confirmed that there can be more than one relevant employer under the whistleblowing law.”
PCW chief executive Cathy James said: “The judgment makes crystal clear that action against a whistleblower can sometimes take place by those outside the primary employment relationship and that outside bodies can have a huge influence over the terms of any worker’s employment.
“Taking this new principled approach to the law, the Employment Tribunal can now go on to consider the exact nature of Dr Day’s relationship with HEE and the circumstances that followed his raising of patient safety concerns in Queen Elizabeth Hospital.”
HCSA will continue to monitor the consequences of the case, and will press for mandatory and total statutory protection for speaking out.
As Dr Cowton told delegates at the TUC Young Workers’ Conference, “a junior doctor who blows the whistle on any wrongdoing should be celebrated and not victimised.”