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New protection for NHS whistleblowers

Plans to guarantee no discrimination for whistleblowers returning to NHS

Adrian O'Dowd

Monday, 20 March 2017

NHS staff who have raised concerns about patient safety or practices in the past will be given more protection against discrimination if they decide to seek a new job in the NHS, the government has announced.

A consultation called Employment Rights Act 1996 (NHS Recruitment – Protected Disclosure) Regulations: Consultation on Draft Regulation, dealing with protecting whistleblowers, has been published today by the Department of Health.

It intends to stop discrimination against whistleblowers when they apply for jobs with NHS employers.

Under the consultation’s plans, there will also be strengthened legal recourse for whistleblowers to access if they believe they have been discriminated against because they appear to have blown the whistle – with appropriate remedies if their complaint is upheld.

These changes were a recommendation from Sir Robert Francis’ Freedom to Speak Up review published in 2015, which found a number of people struggled to find employment in the NHS after making protected disclosures about patient safety.

The consultation is seeking views on new regulations that aim to:

  • give the applicant a right to complain to an employment tribunal if they have been discriminated against because it appears they have previously blown the whistle
  • set out a timeframe in which a complaint to the tribunal must be lodged
  • set out the remedies that the tribunal may or must award if a complaint is upheld
  • make provision as to the amount of compensation that can be awarded
  • 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
  • treat discrimination of an applicant by a worker or agent of the prospective employer (NHS body) as if it was discrimination by the NHS body itself

Health secretary Jeremy Hunt said: “Today we move another step closer to creating a culture of openness in the NHS, where people who have the courage to speak up about patient safety concerns are listened to, not vilified.

“These welcome changes will prohibit whistleblowers being discriminated against when they seek re-employment in the NHS, ultimately ensuring staff feel they are protected with the law on their side.”

Dr Pallavi Bradshaw, senior medicolegal adviser at the Medical Protection Society, said: “Efforts to help to bring about an open, learning culture in the NHS are to be welcomed. We have long called for a culture of openness in the NHS - we believe that healthcare professionals should no longer react to incidents with fear, but with an eagerness to report, explain and learn from what has happened.

“We do, however, recognise the enormous challenge a doctor faces when raising concerns about patient care, particularly if this requires raising concerns about a colleague’s behaviour, health or professional performance.

“Our experience shows that there is still anxiety among the healthcare community about speaking out.”

The consultation closes on 12 May.

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