By Dr Minh Alexander, NHS whistleblower and former consultant psychiatrist, 20 March 2017
Jeremy Hunt the Health Secretary will be trying to grab some attention at the Learning from Deaths conference tomorrow, by claiming that he is “extending” legal protection for whistleblowers.
See a Department of Health (DH) email about this:
In typical DH style, there is much spin and no detail yet. However, the draft regulations should be unveiled soon, and there will be a brief consultation about the proposed regulations, which will run until 12 May 2017.
Various issues arise from the DH announcement:
- The existing legislation, the Public Interest Disclosure Act, does not actually protect. It only allows whistleblowers to sue, usually unsuccessfully due to inequality of arms, for compensation after they have been harmed.
Hunt claims his proposal will:
|“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 which the tribunal may or must award if a complaint is upheld.
Make provision as to the amount of compensation that can be awarded.”
- The Health Secretary is two years behind schedule. He promised to have this anti-discrimination legislation in place by the end of the last parliament. 1 In April 2016 he promised again to have the legislation in place by Autumn, but did not deliver. 1b
- Discrimination cases are hard to win, with Race being the hardest, the latter possibly due to what some have described as a culture of disbelief. 2
Judgments about discrimination cases often boil down to subjective factors. For example:
“A review of Employment Tribunal judgments in race discrimination cases decided at tribunal suggests that the main factors influencing judgments in race cases are the perceived credibility of the parties…”
About 3% of all discrimination claims succeed at hearing.
“Claimants were most likely to be successful at tribunal in Wages Act cases (14 per cent) and least likely in discrimination cases (three per cent).” 3
Many more claims are settled.
Therefore, the right to sue is not that much of a gift.
Add to this disbelief about whistleblowers’ complaints of victimisation – even where Employment Tribunals find that whistleblowers are unfairly dismissed, they are sometimes quite reluctant to link this to whistleblowing.
From Public Concern at Work’s figures for 2013/14, only about 3% whistleblowing claims succeeded at hearing. 4
- By the time whistleblowers find themselves unemployed because they have been sacked, forced to resign or made redundant, they are usually not in very good shape.
Many will also have tried to make a claim to the Employment Tribunal, with all the attendant stresses of an adversarial process, and often much personal expense.
Whistleblowers may end up funding their cases themselves because unions bail, and household insurers find excuses not to pay out for legal services.
Even if whistleblowers ‘win’ an ET claim, legal costs may wipe out most of the compensation.
A broke and exhausted whistleblower will not be best equipped to face yet more stressful, expensive litigation.
- It is hard to see how the government’s proposals will work, even in the unlikely event that a whistleblower makes a successful claim to the ET for discrimination.
If all the claimant gets is compensation – and not a job, this does not solve their long term problem of being blacklisted.
Hunt says he will:
|“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, amongst other things, restrain or prevent discriminatory conduct”|
- The right to sue in the County Court or High Court to ‘restrain or prevent discriminatory conduct’ looks like the most interesting part of the proposals, but is again a difficult and stressful thing for a beaten up and broke whistleblower to undertake.
There will also probably be loopholes. Employment Tribunals very occasionally order reinstatement or reengagement of unfairly sacked workers, but employers can opt to resist this and just pay more compensation. There may well be a similar loophole in the government’s proposals for restraining discrimination during recruitment.
And how exactly do you restrain an employer who has already given a job to someone else?
- The government’s proposals will potentially involve more expense to the public purse from litigation.
The history of public sector whistleblowing is that employers don’t mind shelling out on litigation, because it’s someone else’s money. This includes aggressive appeals when they lose, to wear the whistleblower out.
Public sector employers attract disproportionately more discrimination claims:
“The private sector had a lower share of discrimination cases (56 per cent) than their share of employment tribunal cases as a whole (72 per cent), and the public sector a higher share of these cases (30 per cent compared with their 17 per cent share of claims).”
This raises questions about complacence and failure to change practices – which may be enabled by the fact that it is someone else’s money that is wasted.
- Once a whistleblower is sacked, secondary damage kicks in with de-skilling, and this is another barrier to re-employment.
There should be more focus on preventing serious detriment and sackings, and a leaner means of resolving issues of detriment, rather than just relying on litigation.
A dedicated body with powers to ensure fair play and remedy detriment at an early stage would be much better than yet more reliance on litigation, after things go badly wrong.
Hunt says his proposal will:
“provides the Secretary of State with a power, through regulations, to prohibit certain NHS public bodies from discriminating against an applicant because it appears to the NHS employer that the applicant has previously made a protected disclosure under the Employment Rights Act 1996”
- I am very sceptical of this. Beyond making a good “Heroic Health Secretary” headline, the mind boggles about how this would be administrated.
It will also probably come with qualifications, which will place this facility out of most whistleblowers’ reach. For example, how will ‘certain’ will be defined?
The current reality is that the DH does its best to be as unhelpful and obstructive as it can to whistleblowers who ask the Department for help, and does not lift a finger to stop them being sacked.
The new regulation may lead to a few show cases may be paraded for PR (perhaps in time for the next election), but it is hard to believe there will be a real change of heart, or that the majority whistleblowers will be treated decently by the DH.
If the DH was really serious about protecting whistleblowers and clinical freedom in the NHS, it could reinstate consultants’ right to appeal to the Secretary of State against dismissal (swept away when the new consultant contract was introduced), and extend this right to whistleblowers from all staff groups as well.
- If the government wanted to let whistleblowers back into the NHS, they could do it right away without all this legislative rigmarole.
A supported work scheme with paid jobs and test placements, should be possible, and allow whistleblowers to gradually re-integrate and re-skill.
Establishing and properly funding such a scheme would be a better use of public money than allowing avoidable conflict and fuelling more litigation.
Instead, what has been provided is a shoe string initiative that is little more than coaching, with no guaranteed jobs. NHSI’s part of the whistleblower employment support scheme has no budget at all, and has not even been launched yet. We’re all attending a workshop on 24th March which will only consult on how the NHSI scheme will operate.
But the delay and lack of real help is a good way to send a message.
- Tinkering at the edge of whistleblowing law, and focussing on relatively minor details after the main damage has been done, in no way represents real reform.
The current law, and the government’s latest proposals, have a post detriment focus.
PIDA ignores whistleblowers’ disclosures and only gives whistleblowers the possibility of suing for compensation after detriment.
The law should require employers to proactively protect whistleblowers from the point at which they make a disclosure.
It should also require the proper handling and investigation of disclosures.
There should be sanctions for individuals who suppress disclosures and victimise whistleblowers.
The law should be enforced by a specialist agency with powers, which can both investigate and compel investigations, and order remedy of detriment long before dismissal.
I will update this commentary once the draft regulations are published.
If you are a whistleblower, whether NHS or non-NHS, please consider making a submission to the DH consultation, even if only a brief one.
Times coverage 20 March 2017 of Jeremy Hunt’s public relations exercise on NHS whistleblower blacklisting:
1 Jeremy Hunt promises legislation before election to protect NHS whistleblowers. Haroon Siddique, Guardian 11 February 2015
1b Rules planned to prevent ‘blacklisting’ of NHS whistleblowers Shaun Lintern Nursing Times 6 April 2016
2 Culture of disbelief? Why Race discrimination claims fail in the Employment Tribunal. David Renton. Institute of Race Relations. 2013
3 2013 survey of Employment Tribunal applications
(I’ve asked PCaW several times to re-post the page, but they don’t appear to have done so yet).
5 Consequences, Dr Phil Hammond, Private Eye Issue 1437 February 2017
6 NHS facing ‘mission impossible next year’ Nick Triggle BBC 19 March 2017
7 When so many nurses say the NHS is in crisis, Jeremy Hunt must sit up and take notice, Mirror 19 March 2017