Protection of workers: The case of Dr Chris Day

21st November 2016

The case of Dr Chris Day, a junior doctor working in the NHS, who blew the whistle about patient safety during a nightshift at a busy hospital in South East London, serves to highlight once again the need to reform the Public Interest Disclosure Act 1998 to improve legal protection for whistleblowers.

This complex piece of legislation needs to be strengthened, clarified and widened in scope to prevent individuals like Dr Day being forced into protracted and expensive litigation in order to enforce their rights not to be victimised for raising concerns at work.

Section 43K of the Employment Rights Act 1996 protects workers who witness wrongdoing in their workplace and are subsequently dismissed or suffer a detriment. Public Concern at Work was instrumental in getting PIDA on to the statute books. It does not act as a shield and relies on an individual enforcing their rights via the employment tribunal.

Dr Day’s case shows how, a dichotomy between training and employment has results in large numbers of NHS trainees being denied protection if they blow the whistle. Dr Day was refused a remedy against decisions which eventually led to the termination of his training. Dr Day is a young doctor who was on a fast track pathway to consultancy who raised concerns both to the hospital in which he was working, part of Lewisham and Greenwich NHS Trust, and to Health Education England (“HEE”). HEE, is the body responsible for; arranging the recruitment, selection and deployment of doctors in training and who arranged Dr Day’s placement, paid part of his salary, was able to exercise supervision over him and place conditions on his engagement with a particular Trust.

The Employment Tribunal struck out Dr Day’s detriment claim against HEE as having no reasonable prospects of success and the Employment Appeal Tribunal upheld that decision, rejecting his extended definition of ‘worker’ argument under s43K ERA 1996 i.e. agency or contract workers, and his additional argument that Article 10 of the European Convention of Human Rights (freedom of expression) required that whistleblowing legislation be interpreted purposively to apply to his relationship with HEE. The EAT said that there was no need in Dr Day’s case for additional protection as his legal protection was set out in statute. The EAT said that the lack of protection available following disclosures made to third party bodies such as HEE was not a ‘lacuna’ in the law.

We must be mindful of the message this gives to our young health professionals when we are seeking to build and not erode confidence in speaking up about malpractice, in the knowledge that they will protected if they do. This is part of the message given by Sir Robert Francis QC in his Freedom to Speak Up Review published on 11 February 2015. and if When considering the integrity of the system in the context of whistleblowing, surely this must be extended to provide protection to individuals who raise concerns to a body such as HEE who have such control over approximately 54,000 doctors in training.

Of course, in Dr Day’s case, although the law provides for protection for him and other junior doctors in respect of disclosures made to the Trust in which they are employed, this is cold comfort when his claim states that the majority of the detrimental treatment came from HEE and were outwith the control of the Trust.

Following the Francis Review PCaW welcomed the changes to PIDA which include student nurses and midwives within scope of PIDA but question why student doctors and other students do not enjoy the same level of protection. We have much the same reaction when considering the anomaly of NHS job applicants being within scope but not job applicants in general. The double blow of withdrawal of government support in the form of legal aid for these types of cases and the introduction of employment tribunal fees in April and July 2013 respectively serves to make it extremely difficult, if not impossible, for many people to pursue claims, particularly at a time when they are likely to be unemployed or otherwise financially challenged and suffering from having been treated badly.

Clearly there is still much to be done in whistleblowing to ensure that all workers have the confidence to speak out without fear of reprisal, or if that happens, that they are able to use the law in situations such as Dr Day’s as that will be for the benefit of us all.