Paula Kathrens, an employment specialist at law firm Blake Morgan, said: “Today’s consultation is good news for NHS staff and ultimately good news for the NHS and the public it serves. The health sector has one of the highest instances of whistleblowing reporting and currently the law does not protect job applicants who have blown the whistle in a previous employment. This is one area where the UK whistleblowing legislation differs significantly from protection against discrimination under the Equality Act 2010. Under the Equality Act 2010, not only are job applicants protected against discrimination generally, but there are victimisation provisions which protect job applicants who have made a discrimination complaint against a previous employer.
“By contrast a worker who has blown the whistle against a previous employer might be protected from reprisals, but only if they are already working for the new employer. In all employments, but particularly the NHS, this leaves a big gap for whistleblowers who are not yet re-employed and looking for another job. Following the Mid Staffs inquiry and the Francis Review it was recognised that action needed to be taken to challenge the culture within the NHS that deterred staff from raising concerns and legislation was passed in 2015 to pave the way for protection for applicants in the NHS. The consultation launched today is on the detail of the regulations. They are based on the regulations which prevent blacklisting for trade union reasons.
“In the draft regulations, the emphasis is on whether “it appears to the NHS employer” that the job applicant has blown the whistle – it does not matter if in fact it turns out that they have not done so. It will also be for the NHS employer to prove that there has not been discrimination, rather than for the job applicant to prove that there has. It will be interesting to see the case law developments in this area.
“Discriminatory conduct by NHS staff in the course of recruiting a whistleblower, or an agent on behalf of the NHS employer, would be treated as if it had been done by the employer itself. It would not matter if the NHS employer did not know or approve of the conduct. It will be a defence for the NHS employer to show it took all reasonable steps to prevent its staff or agents from discriminating. This mirrors the defence currently under the Equality Act 2010 and places an emphasis on the employer to show it has put in place thorough training and done everything it can to develop a culture where such discrimination is not tolerated.
“As with other whistleblowing claims, under the draft regulations, the amount of an award for a successful claim will be what is fair in the circumstances, with no maximum ceiling. Employment Tribunals will, however, be required to take into account a number of specified factors. An award could even be increased if an Employment Tribunal has made a recommendation that the NHS employer takes action to remove or reduce the effect of the discrimination on the job applicant, and the NHS employer has not done so. There are also ways that a job applicant could restrain an employer from discriminating against him or her.
“The consultation on the draft regulations is open until 12 May 2017. At the same time, the European Commission has just launched a consultation on whistleblower protection across the EU. The UK’s whistleblowing laws were introduced completely independently of the EU and are in many ways more robust than those in other EU Member States, but it will be interesting to see what conclusions are drawn about the best way of protecting whistleblowers across the EU.”