Employment Rights Act 1996 (NHS Recruitment—Protected Disclosure) Regulations

Baroness Jolly Excerpts

Tuesday 1st May 2018 Lords Chamber

Finally, although we on these Benches support the regulations, I hope that they are a first step. They are not comprehensive enough and I would like some indication from the Government that there is an intention to expand them to cover all employees in the NHS.

[Baroness Jolly (LD)]

My Lords, on these Benches we too welcome the regulations. We note that they extend to just Wales and Scotland, and that they come on the back of the Francis review of 2015. I will make a few remarks and then I have a few questions.

In a sense, it is not before time, but last week I spoke to an NHS whistleblower who had given up. He has left the NHS and he is leaving the UK. He has been bullied and was passed over for employment. He had been threatened that, had he gone to an employment tribunal, it would be made sure that he lost, and therefore that he lost a lot of money on top of that. With some distance between then and now, his reflection is that in all NHS settings there are posters urging people, if they see anything that gives cause for concern, to contact their manager and that there will be no recrimination. This measure is too late for that individual.

I would like to ask the Minister some questions and I hope that her answers will clarify some of the things about which I am unclear. I said at the outset that the regulations extend to Wales and Scotland. With devolution, one might wonder why they do not extend to Northern Ireland as well. Echoing the question from the Labour Benches, to which NHS employers or category of employers do they not apply and why not? What is the reasoning behind this? What protections would be made available for a worker who supports a whistleblower? Often they can be tarred with the same brush. If two or more people are trying to raise an issue that concerns them but does not concern another body of the workforce, that can be a really uncomfortable place to be.

There has been no improvement in NHS staff’s confidence in reporting practice over the last four years, so how can we remedy that? Is the Minister confident that the regulations will change what is current practice? We know this from surveys of NHS employers. What support could the whistleblower themselves expect in new employment in the event of bullying and isolation, whether the employment is in the NHS or an arm’s-length body? The culture is in part still very much one of blame, despite the posters, so how does the Minister suggest that that should be overcome?

[Baroness Manzoor]

My Lords, I thank the noble Baroness, Lady Thornton, in particular for her good wishes. This is my first time at the Dispatch Box and I will endeavour to answer the many questions that have been put to me. I ask noble Lords to forgive me if I omit any; if I do, I will certainly write.

I begin with the question asked by the noble Baronesses, Lady Thornton and Lady Jolly: why is it that just the NHS is included, and which other organisations are excluded from these protections? As noble Lords know, these regulations are specifically focused on NHS employers and are not intended to cover employers in other sectors, which would be outwith the enabling powers under Section 49B of the Employment Rights Act 1996. Section 49B(7) of that Act defines “NHS public body” by reference to a list of bodies, thus the powers of the regulations are limited to those bodies only. Any amendment to that list would require primary legislation.

The noble Baroness, Lady Thornton, asked about the wording,

“because it appears to the NHS employer”.

Once again, the regulations reflect the primary legislation, which provides powers for regulations to prohibit NHS employers from discriminating because it appears that the applicant has made a protected disclosure.

The noble Baroness asked about the time limit of three months. We know that some respondents to our consultation were concerned that the three-month time limit was not long enough but, as the noble Baroness will know, it is consistent with the time limits for employment claims generally. Where discrimination involves an admission to do specified things, such as due process in job application, the time starts to run from the end of the period within which it was reasonable for the NHS employer to have acted.

On injunctive relief, in terms of making two complaints —that is, going to the employment tribunal and going to the civil courts—I think the noble Baroness was indicating that this may well be expensive. If there are dual proceedings, fees payable to the employment tribunal have recently been abolished so there will be no fees for that tribunal, and we are expecting that most cases, as I said in my opening remarks, will initially be conciliated and then go to the employment tribunal. However, we do not envisage dual proceedings except in the very limited circumstances that have been provided in the regulations. The noble Baroness asked whether we have any plans to reintroduce tribunal fees. No, there are no plans to reintroduce those fees.

On the issue of culture, the whole point from the Government’s perspective is that we need to ensure that the culture within the NHS is changed so that those people who want to highlight poor practice in the NHS, who are concerned about patient safety, have the right to speak up. It is very important that their rights are protected. Should they wish to move to a new employer, the regulations will help to safeguard them. Paramount is patient safety, and the regulations will go some way to addressing those issues.

I thank the noble Baroness, Lady Jolly, for also welcoming the regulations. I have already covered who they cover and why: it is because of the prescribed list, and we will need primary legislation if we are to amend it. However, we will keep the regulations under review and if we think that they need to be strengthened, we will look seriously at that. The whole issue is that we want the NHS to be the best employer and to protect the greatest asset that we have in the NHS: our staff.

The noble Baroness asked to which NHS categories the regulations do not apply. I think I have answered that question—yes, I am getting a nod there. The other question she asked was what protection is given to more than two people. Of course, the protection is there for someone applying for a new job, so it is relevant only to that individual. If there is another friendly person, the regulations do not cover them. Of course, in the wider aspect of work there may be some remedy under the Employment Rights Act 1996, but I cannot be sure from my basic knowledge.

What new support will we offer the person who has made the complaint, the so-called whistleblower? The whole point of the regulations and having this open, transparent, fair culture within the NHS is that it is very important for employers to have policies in place to tackle issues of concern. We are being supportive to ensure that these things do not happen.

I think I have answered most of the questions put to me. As I said, forgive me if I have missed anything: I shall write. Clearly, there are questions about how the regulations will work in practice. As I said, the Government will keep the regulations under review and consider issuing guidance.

To conclude, we want an NHS where lessons are learned to provide the safest possible care for patients. This is what it is about: actually changing the culture. The regulations will help to give a clear message that openness, transparency and fairness within the NHS should be the norm. They will also improve the trust of patients, other service users and the wider public. They will support NHS employers to be an exemplar to others in fostering a culture of openness and willingness to report problems with care.

NHS staff who are prepared to speak up are a very important asset. We want NHS staff to feel confident that when they speak up in the public interest it will not have a negative impact on their career. We want NHS employers to be exemplars in fostering a culture of openness and willingness to report problems. We want a culture in which lessons are learned to provide the safest possible care for patients.

The regulations are an important step forward in achieving those aims. I commend them to the House.