A salve for NHS whistleblowers?

The peculiar vulnerability of whistleblowers in the workplace has recently been illustrated by the case of the chief executive of Barclays bank, who is reported to have engaged the assistance of a US law enforcement agency in an unsuccessful attempt to unmask a whistleblower who raised concerns to do with his appointment of an associate to a senior role in the bank.

In theory, the legal protection for whistleblowers is straightforward. A worker makes a disclosure, usually to his employer, on qualifying grounds which are prescribed (typically, a legal breach or endangering health or safety). Provided the disclosure is made in the public interest (until June 2013, in ‘good faith’) it amounts to a protected disclosure, colloquially know as ‘blowing the whistle’. Any retribution visited on the worker for blowing the whistle, whether by detriment or dismissal (which is deemed automatically unfair), is unlawful and can sound in damages.

However, following the advent of the Public Interest Disclosure Act 1998, incorporated into the Employment Rights Act 1996 (ERA), this analysis has been rendered increasingly simplistic, if not naïve, by the proliferation of case law in the area which has at times over-complicated and obscured the protection supposed to be extended to whistleblowers, leaving it in something of a legal thicket.

It is against this background that two Court of Appeal decisions in May have brought welcome clarification to the question of which workers qualify for protection and the test of whether a worker has been unfairly dismissed as a whistleblower.

Definition of worker

The issue in Day v Health Education England & Ors [2017] EWCA Civ 329 concerned whether a trainee doctor was a ‘worker’ within the extended definition of worker at section 43K ERA.

Dr Day claimed he had suffered detriments for making protected disclosures regarding patient safety arising from staffing problems during the course of his training contract. However, it was only if Dr Day could show that he was a worker pursuant to section 43K that he could establish he was employed by Health Education England (HEE) and therefore enjoyed the statutory protection against being subjected to detriments. The difficulty for Dr Day was that while he had a training contract with HEE, this was not an employment contract. Rather, his contract of employment was with Lewisham and Greenwich NHS Trust with the effect that he was a worker of the trust within the ordinary definition at section 230(3) ERA.

At first instance the claim against HEE was struck out by the Employment Tribunal (ET). This decision was upheld by the Employment Appeal Tribunal (EAT), Mr Justice Langstaff reasoning that Dr Day could not come within the extended definition of worker at section 43K as he was already a worker within the standard definition at section 230(3). The EAT applied a literal reading of section 43K (1)(a), ‘For the purposes of this Part “worker” included an individual who is not a worker as defined by section 230(3)’, treating the definitions of worker at sections 43K and 230(3) as mutually exclusive.

The EAT also noted that although HEE decided where Dr Day worked, reviewed his training, and paid much of his salary, it did not ‘substantially determine’ the terms under which he worked for the purposes of section 43K(1)(a). In addition, Langstaff J observed that section 43K refers to a variety of health service relationships, including that between trainee midwives and the Nursing and Midwifery Council. In his view, the omission of the relationship between doctors and HEE connoted a deliberate intention to exclude it.

While Langstaff J had been prepared to admit of a purposive constructive to whistleblowing legislation, this did not assist Dr Day on the facts of his case as in the view of the EAT, the language of section 43K(1)(a) was clear.

The Court of Appeal disagreed. Lord Justice Elias, giving the unanimous judgment of the court, held that while ostensibly the definition of worker under section 43K(1)(a) excludes that under section 230(3), on a purposive construction this exclusion should be read as only applying to an individual who ‘as against a given respondent’ is not a section 230(3) worker. To read section 43K(1)(a) literally would deprive an individual of protection as a whistleblower if he or she was employed by anyone else, even in an unrelated second job.

In arriving at this conclusion, Elias LJ approved the judgment of the EAT in McTigue v University Hospital Bristol NHS Foundation Trust [2016] ICR 1155 in which the president, Mrs Justice Simler, found that a forensic nurse examiner who brought a whistleblowing detriments claim against the NHS trust where she worked was a worker employed by that trust for the purpose of section 43K(1)(a), even though her contract of employment was with a third-party employment agency.

Protected disclosures

Beatt v Croydon Health Services NHS Trust [2017] EWCA Civ 401 was another NHS whistleblower case considered by the Court of Appeal last month. Albeit on entirely different facts, the case again concerned protected disclosures to do with patient safety arising from staff shortages. Dr Beatt won his claim of automatic unfair dismissal (section 103A ERA) for making protected disclosures before the ET. The EAT allowed the respondent’s appeal on the basis that the ET had failed to give due weight to the employer’s case that Dr Beatt was not dismissed for making any protected disclosures, but for reasons of conduct. According to the employer, his disclosures were made in pursuit of a vendetta against colleagues and therefore did not qualify for protection as they were made in bad faith.

The Court of Appeal allowed Dr Beatt’s appeal, restoring the decision of the ET. The employer’s case, namely that the ET should have considered whether its subjective view that Dr Beatt had not made protected disclosures was genuinely held (in keeping with orthodox principles of unfair dismissal), was, according to Lord Justice Underhill, ‘plainly wrong’. The correct approach was for the ET to form an objective view as to whether the disclosures in question were capable of protection.

‘Parliament has enacted a careful and elaborate set of conditions governing whether a disclosure is to be treated as a protected disclosure. It seems to me inescapable that the intention was that the question whether those conditions were satisfied in a given case should be a matter for objective determination by a tribunal; yet if Ms McNeill [counsel for the respondent] were correct the only question that could ever arise (at least in a dismissal case) would be whether the employer believed that they were satisfied. Such a state of affairs would not only be very odd in itself but would be unacceptable in policy terms. It would enormously reduce the scope of the protection afforded by these provisions if liability under section 103A could only arise where the employer itself believed that the disclosures for which the claimant was being dismissed were protected.’

The point is pertinent given that the government has recently consulted in respect of the draft Employment Rights Act 1996 (NHS Recruitment – Protected Disclosure) Regulations 2017. The draft regulations were born of Sir Robert Francis QC’s review, ‘Freedom to Speak Up’, which considered the plight of NHS whistleblowers in the wake of the 2013 report of the Mid Staffordshire NHS Foundation Trust public inquiry. The inquiry exposed a workplace culture inimical to staff raising concerns about patient safety.

The intention of the draft regulations is to outlaw discrimination by an NHS employer because a job applicant has previously made a protected disclosure. The proposed protection appears at regulation 3, which provides: ‘An NHS employer must not discriminate against an applicant because it appears to the NHS employer that the applicant has made a protected disclosure.’ The difficulty with this formulation is that the question of whether or not the applicant is a whistleblower is a matter within the subjective determination of the employer. This echoes the argument deployed by the employer against Dr Beatt, which, although successful before the EAT, was deprecated by the Court of Appeal.While the intervention of the Court of Appeal in Beatt is timely in confirming that whether a disclosure is protected is an objective question of law consistent with section 43A ERA, rather than a matter of the employer’s impression, it is a general comment on the difficulty which NHS whistleblowers face in asserting their rights – not to mention an acute paradox that such muddled thinking should have crept its way into the draft provisions supposed to protect this very group.

In summary therefore, although the recent judgments of the Court of Appeal in Day and Beatt have brought some clarity into this difficult area of employment law, given the motivation for NHS employers to vigorously defend such claims (not least owing to the potential monetary and reputational damage at stake), the burden NHS whistleblowers face in asserting their statutory rights remains appreciable.

David Mitchell is a barrister at Ely Place Chambers

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