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Junior doctor wins legal protection for all trainees who report safety concerns

BMJ 2018; 361 doi: https://doi.org/10.1136/bmj.k2208 (Published 18 May 2018) Cite this as: BMJ 2018;361:k2208
  1. Deborah Cohen
  1. London

Health Education England has conceded that it is an employer of postgraduate medical trainees and that junior doctors who raise concerns in the public interest are protected by statutory law.

The admission came at the start of an employment tribunal on 14 May before any evidence had been heard. The protracted legal battle involves Chris Day, a trainee doctor who raised concerns about understaffing to hospital managers while working in the intensive care unit at Queen Elizabeth Hospital in southeast London.

The acknowledgment of its status as an employer is a U turn for HEE, which had argued since 2015 that junior doctors were not its employees, meaning that they could not take action against it under employment law protections if they believed they had been wronged.

After the latest hearing a spokesperson for HEE told The BMJ, “We have made very clear our position on being considered as a second employer for the purposes of whistleblowing if it removes a potential barrier for junior doctors raising patient safety concerns. That is why we did not contest this latest tribunal, and that remains our position.”

The tribunal determined that HEE award Day £55 000 (€63 000; $74 000) in costs.

Day brought his case against Lewisham and Greenwich NHS Trust, which runs Queen Elizabeth Hospital, and HEE, alleging that he was “victimised” for raising concerns over patient safety.

In 2014 he had raised safety concerns with senior managers in an email, copying in HEE, the government agency that arranges junior doctors’ training contracts, pays a substantial part of their salaries, and oversees their training.

Day repeated his concerns at his annual appraisal by HEE, which told him three days later that he was deemed “unsatisfactory” on account of “personal and professional conduct issues.” Day’s training number was subsequently deleted.

Although consultants are legally protected for raising patient safety concerns because they are on fixed term contracts with hospitals, the situation for trainees has been subject to dispute.

At Day’s first employment tribunal in 2015, HEE successfully argued that junior doctors had no whistleblowing protection. But in May 2017 the Court of Appeal overturned the tribunal’s ruling and asked it to consider whether a second employer role for HEE was possible.1

Tim Johnson, Day’s solicitor, told The BMJ, “Junior doctors have ‘atypical’ employment arrangements. They generally work on a series of fixed term contracts rather than an open ended contract like most employees. By denying that they were an ‘employer’ under s43(K) [of the Employment Rights Act 1996], HEE delayed Chris’s claim for three and a half years. As a result he suffered financial loss and his career has been damaged.

“Other junior doctors can, from now on, rely on HEE’s concession in the Day case. They can use it to claim legal protection if HEE takes action against them for raising concerns about patient safety, and they can do this in employment tribunals, where there are no court fees and there is much less risk of having to pay HEE’s costs if they lose.”

A spokeswoman for the Hospital Consultants and Specialists Association welcomed the outcome of the tribunal, saying that Day had “won an important victory which benefits all junior doctors in training”

She added, “This is an extremely significant moment. Doctors in training can at last feel confident that they have the right to hold HEE accountable for decisions it makes which affect their employment, even though it is not their workplace employer.”

But the BMA is disputing the interpretation of HEE’s admission. A spokesperson said, “Though HEE may intend to be bound by the concession, there would be nothing to prevent them from resiling from it in any future case.”

The BMA said that a contract that it drew up with HEE in 2016 to deal with the perceived gap in whistleblowing protection for trainees was still in force and that this gave junior doctors the option to take HEE to court if they had an employment claim.

A spokesperson for HEE said that it would keep this contract in place “as another route to hold HEE legally to account.”

Commenting on the outcome of the tribunal, Day said, “Over the last 3.5 years HEE have spent over £130 000 of taxpayer money trying to ensure the facts of the case are never heard.”

HEE said that it wanted to “reiterate that HEE did not act in detriment to Dr Day and the dedicated, longstanding NHS staff he has accused of doing so will have their side of the story heard for the first time at the tribunal to come.”

A further tribunal will be held in October.

References

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