The government should act to close a loophole in whistleblowing protection after a court ruled Health Education England’s relationship with junior doctors was outside the scope of employment law, HSJ has been told.
Legal experts said junior doctors continue to have whistleblowing protection from the actions of their employing trusts and this could include any subsequent action taken by HEE if it was based on information supplied by trust employees such as clinical supervisors.
The case of junior doctor Chris Day, who claims he was unfairly dismissed by Lewisham and Greenwich Trust for alleged whistleblowing in 2014, has caused widespread concern among trainees after an employment tribunal barred him from including HEE in his claim. An appeal ruling last month said Parliament had deliberately excluded junior doctors’ relationship with HEE from protection under employment law, adding that Dr Day was not an employee or worker of HEE.
Employment lawyers have told HSJ this does leave junior doctors at risk from detrimental treatment by HEE. Peter Daly, a solicitor at Bindmans law firm, said: “An employer is restricted from imposing a detriment on a whistleblower, but as HEE is not an employer there is no such restriction on HEE.
“This is a substantial gap in the protection for junior doctor whistleblowers. It is at odds with the government’s stated aim of protecting NHS whistleblowers, for example in the review by Sir Robert Francis QC. An amendment to the current legislation to address this situation would not be complex and might be achieved relatively quickly.”
He added that junior doctors could in theory judicially review a decision by HEE but this was likely to be “extremely expensive and realistically out of the financial reach of an individual doctor”.
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