Following the publication of a national whistleblowing policy for the NHS and new guidance from the CQC on the establishment of freedom to speak up guardians, Jog Hundle from Mills and Reeve assess how whistleblowers have fared recently in the courts.
Whistleblowers in the courts
As the new NHS Whistleblowing Policy notes: “There are very specific criteria that need to be met for an individual to be covered by whistleblowing law when they raise a concern.” While NHS organisations are being encouraged to strengthen the internal support they offer to whistleblowers, they also need to keep an eye on developments in the courts.
What disclosures qualify for protection?
Among other requirements, in order to qualify for protection, the worker must convey information. He or she must also reasonably believe that it is in the public interest to make the disclosure. The Employment Appeal Tribunal (EAT) has recently commented on both these elements of the statutory test in a way that will be seen as helpful to whistleblowers.
In one recent decision, the EAT said that to be protected, a disclosure did not need to be purely information. In many cases information could be mixed up with allegations and statements of opinion. It would be sufficient for these purposes if the necessary information could be extracted, even if it could not be separated from other material. We know from previous cases that the necessary information does not all need to be in one document and that there are no formal requirements for the way in which it needs to be presented.
In another case the EAT emphasised that it was the worker’s opinion of what was in the public interest that was important. As long it was a reasonable belief, it did not matter if others might have taken a different view. It did not even matter if the belief turned out to be mistaken. So a woman working for a leading charity, who complained that her personal working environment was bad for her health, was able to take her claim to a full hearing. This was despite the fact that it was not obvious that other people would be adversely affected.
Both these cases remind employers not to take too restrictive a view of the type of information that qualifies for protection under whistleblowing legislation.
Who is the employer?
Normally there is no difficulty in establishing who the employer is for whistleblowing purposes. The basic definition of worker is the same as in most employment protection legislation, and extends not only to employees in the strict sense, but to other individuals who are engaged under a contract personally to do work, and are not in business on their own account. Logically enough, the person engaging the worker to do this work is regarded as their employer, and the worker will be protected against any victimisation by that employer in relation to protected disclosures.
A difficulty arises, however, where the worker has a relationship with more than one organisation, as is the case with junior doctors. The EAT has recently decided that it is the Trust for which they are working which is the employer for these purposes and not Health Education England, which organises and supervises their placements. It followed that a doctor would not be protected if he was treated unfavourably by HEE because of protected disclosures he had made to them about his working experience at the hospital. However, he would have been protected if he had been adversely treated by the Trust.
This exposes an anomaly in current whistleblowing protection, since unlike discrimination legislation it does not normally protect a worker from victimisation by an organisation with which he or she has not ever had a contractual relationship. However, the definition of worker is extremely complex and it would be a brave employer that acts on the basis that an individual disclosing information does not qualify as a worker.
This approach is reinforced by the wide scope of the new NHS whistleblowing policy which provides as follows: “Anyone who works (or has worked) in the NHS, or for an independent organisation that provides NHS services can raise concerns. This includes agency workers, temporary workers, students, volunteers and governors.”
The Government has moved to enhance the protection for workers in the NHS, for example by extending protection to student nurses and midwives (who had not previously qualified as workers) last year. However, the protection for whistleblowers still remains narrower than the corresponding protection for workers with complaints of discrimination.
It is perhaps for that reason that in recent years, employment tribunals have tried to interpret the legislation in a way that gives the greatest protection for whistleblowers. Employers, whether in the NHS or elsewhere, would be best advised to ensure that their own understanding of the legislation reflects this direction of travel.
Partner, Mills & Reeve LLP