Alan McCormack | Senior Associate

Whistleblowing in the NHS

A number of interesting cases involving whistleblowing in the NHS have been reported in the media recently.

Whistleblower’s Contract Terminated

In one such case, a man working as self-employment project manager for the estates department of Shrewsbury and Telford Hospitals NHS Trust was awarded £50,000 at an employment tribunal after his contract was terminated for making a protected disclosure.

He had tried unsuccessfully to persuade the NHS trust that it should warn former occupiers of trust property that they might have been exposed to asbestos, reports the Shropshire Star.

The employment tribunal found in his favour, agreeing that he had suffered an unlawful detriment because of his attempts to raise the issue.

The case has now been heard by the Court of Appeal in London, where judges have apparently indicated that his compensation should be increased to reflect the impact the termination has had on his future career. The case has now been sent back to the tribunal to reconsider the compensation award.

Surgeon Wins Unfair Dismissal Case

In a second case, a neurosurgeon at Brighton and Sussex University Hospitals NHS Trust recently had his unfair dismissal ruling upheld by the Employment Appeal Tribunal, reports People Management.

He had raised concerns with hospital bosses about the fact that NHS emergency patients were allegedly being turned away at the hospital but private patients were being treated. He also alleged that other consultants were submitting fraudulent pay claims.

He claims that after highlighting these issues he was subjected to a hostile environment at work and was subsequently dismissed.

An employment tribunal found last year that he had been unfairly dismissed but rejected his claim that he had suffered a detriment as a result of his whistleblowing.

Improving Whistleblower Protection

The UK Government recently ran a consultation exercise over proposals to prohibit discrimination against whistleblowers when they apply for jobs with NHS employers, and to strengthen the legal recourse available to whistleblowers if they believe they have been discriminated against because they appear to have blown the whistle.

These changes were based on recommendations made by Robert Francis in his ‘Freedom to Speak Up’ review, which found a number of people struggled to find employment in the NHS after making protected disclosures about patient safety.

The consultation, ‘Protecting whistleblowers seeking jobs in the NHS’, sought views on draft 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, among other things, restrain or prevent discriminatory conduct, and
  • 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.

The consultation closed in May this year, and the Government has said it is now analysing the responses received.

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Contains public sector information licensed under the Open Government Licence v3.0.

Alan McCormack

Alan McCormack

Employment Law Team

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