Whistleblowing in the NHS: Increased protection for applicants
It is important to remember that these Regulations are not yet in force and may be subject to further changes following scrutiny by Parliament.
The Department of Health and Social Care has now published the Employment Rights Act 1996 (NHS Recruitment – Protected Disclosure) Regulations. These will introduce important new rights, which apply only to NHS bodies, in relation to whistleblowing and job applicants. When brought into force, the Regulations will require NHS bodies to ensure that those applying for jobs are not treated adversely due to whistleblowing at other Trusts.
These Regulations follow the 2015 Francis Report into whistleblowing in the NHS which recommended new legislation to protect whistleblowers applying for NHS jobs. The final Regulations are very similar to those proposed as part of a consultation which took place between March and May 2017.
The Regulations prohibit discrimination by NHS employers (who are listed in the Regulations and includes all NHS Trusts in Great Britain) in the recruitment of an applicant on the grounds that they have made, or appear to have made, a protected disclosure in previous NHS employment. This may include refusing their application or in some other way treating them less favourably than other applicants for the post.
The term applicant is broad and will include any individual who applies to an NHS employer for a contract of employment, a contract to do work personally or an appointment to an office or post.
Importantly, it does not matter if it later turns out that the prospective employer is mistaken and the applicant did not in fact make a legally protected disclosure. The fact that it appears to the prospective employer that a protected disclosure was made will suffice.
The Regulations provide that any discrimination against the applicant by a worker or agent of the prospective NHS employer will be treated as though it was carried out by the NHS employer itself. It is not relevant whether the NHS employer knows about or approves of the conduct. However, it will be a defence for the NHS employer to show that it took all reasonable steps to prevent its staff or agents from discriminating. This mirrors the defence open to employers in discrimination claims and places the emphasis on those of you who are NHS employers to show that you have put adequate training in place and taken appropriate steps to encourage a culture of openness.
What does this mean for me?
The Regulations enable an applicant to make an Employment Tribunal claim within three months of the date of the alleged discrimination. The consultation response clarifies that, where an applicant is challenging a decision by an NHS employer not to employ or appoint them, the three month time frame will run from the date the decision was communicated to the employee.
Compensation will be whatever the Tribunal considers just and equitable in the circumstances. As with other whistleblowing claims there will be no upper limit on the amount that can be awarded. The Employment Tribunal can also make a recommendation that the NHS employer takes action to remove or reduce the effect of discrimination on an applicant (and compensation can be increased if any such measures are not complied with).
Broadly, it will be for those of you who are NHS employers to prove that there has not been any discrimination, rather than for the applicant to prove that there has. Problems will particularly arise where candidates have a reputation within their specialty, and that could give rise to a claim if a panel chooses to reject a known problem candidate and that view arises from circumstances where they have raised issues in the past. This means that it is more important than ever to follow recruitment best practice, for example setting clear and specific criteria and carefully recording and following interview scoring and the reasons why an application has been rejected.
However, by far the biggest potential change in the law is the proposal to give the applicant “a right to bring a claim in the County Court or the High Court for breach of statutory duty in order to restrain or prevent discriminatory conduct”. Essentially this means that an applicant can apply for an injunction to stop discrimination taking place. During the consultation process, there was strong support for this additional protection, but concerns were raised about how this would work in practice, and the potential time and cost of defending two sets of proceedings at the same time (in the Employment Tribunal and in the civil courts). However, the consultation response states that the Regulations “do not envisage dual proceedings except in limited circumstances”.
It is important to remember that these Regulations are not yet in force and may be subject to further changes following scrutiny by Parliament. However, any amendments are likely to be relatively minor.
Currently, if you employ someone who has blown the whistle in previous employment, they are protected if they are subject to a detriment in your employment or are dismissed as a result of making a protected disclosure (even though the disclosure was not at your Trust). However, these new Regulations mean that applicants for work with you who are refused employment or treated less favourably because they have previously blown the whistle (or appear to have done so) are now protected as well. The idea is that this closes what was a big gap in the protection of whistleblowers looking for another job.
It is still unclear exactly how the right to “restrain or prevent discriminatory conduct” will work in practice. It seems unlikely that a court would order an NHS employer to select a particular candidate. However, there may be scope for the court to order an NHS employer to reconsider a recruitment decision or to dictate how much weight should be attached to particular aspects of the candidate’s application, all of which have the potential to disrupt and delay a selection process. Concerns were raised during consultation about the effect on an employer’s ability to recruit whilst being restrained and the knock on effect on the ability to fill posts quickly to meet shortages. The consultation states that, in deciding to make an order, a court would be expected to take into account all the circumstances of the case, including the urgency of the need to recruit.
The Government plans to keep the Regulations under review and consider whether further guidance is needed in future.
Emlyn Williams (firstname.lastname@example.org) is a Partner in the Employment, Pensions and Immigration Team and is based in Liverpool. Emlyn has extensive experience of advising NHS Trusts on all aspects of employment law including whistleblowing and discrimination. If you have any questions please do not hesitate to contact Emlyn or speak to your usual Weightmans advisor.
The full consultation response document can be found online here.