Whistleblowing laws to be extended

Legislation to protect known whistleblowers from discrimination when seeking a new job, will be introduced, the health secretary has promised in response to a major report out today that found 'shocking' treatment of NHS staff who speak out about patient safety concerns.

Accepting all the recommendations of the review by barrister Sir Robert Francis QC, Jeremy Hunt promised legislation to plug a gap in the current law to ensure whistleblowers are not discriminated against when seeking new jobs.

Francis's report, Freedom to Speak Up, found 'shocking' accounts of 'bullying and being isolated' from staff when they had tried to speak out. He heard evidence form over 600 individuals over 19,500 staff who had responded to an online survey.

Francis said there is a 'culture' in many parts of the NHS which deters staff from raising concerns that needs to be changed.

The legal policy and framework around whistleblowing, he said is 'not easy to understand and has many layers', with a law that is 'limited' in its applicability and effectiveness.

The legislation that provides protection for whistleblowers is contained in the Employment Rights Act 1996, as amended by the Public Interest Disclosure Act 1998.

Francis said: 'At best the legislation provides a series of remedies after detriment, including loss of employment, has been suffered.' But, he said, even these are hard to achieve and generally provide a remedy too late to be meaningful.

In particular he voiced concern over the lack of protection for people seeking employment from discrimination on the grounds that they are known to be a whistleblower.

'This is an important omission which should be reviewed,' said Francis.

In addition, he said the law does nothing to remove the confusion over the term 'whistleblowing' which 'means different things to different people'.

Francis also criticised the 'defensive' attitude of legal advisors when asked by NHS organisations about issues around public interest disclosures. Lawyers, he said tend to look for potential defences to a claim and to pre-empt an employment tribunal, rather than advise on positive steps that can be taken.

Among the report's other recommendations were action to make raising concerns part of normal working life, the appointment of a whistleblowing guardian in every trust, a national independent officer to support guardians when cases go wrong and a support scheme to help staff who find themselves out of a job as a result of raising concerns get back into work.

Commenting, Mark Solon, managing director of Wilmington Legal Division, warned: 'The NHS Litigation Authority, which provides indemnity cover for claims, has set aside £26bn to cover liabilities, nearly a quarter of the NHS budget.

'This litigious environment may make those in authority less keen to encourage whistleblowing if it could result in yet more claims.'

He suggested the only way to improve the situation was to introduce a duty to report.

Read the full report here.