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

Baroness Thornton Excerpts

Tuesday 1st May 2018 Lords Chamber

[Baroness Manzoor (Con)]

My Lords, we are committed to building a culture of openness and transparency in the NHS to help make it the safest healthcare system in the world. We want to ensure that those who work in the NHS feel safe to make a disclosure in the public interest. This is often called speaking out or “blowing the whistle”.

When Sir Robert Francis QC carried out his Freedom to Speak Up review in 2015, he recommended a number of changes to help create an open and honest reporting culture in the NHS. The Government have therefore responded to these recommendations, in particular by establishing an independent national guardian, Dr Henrietta Hughes, to support NHS whistleblowers and improve the reporting culture in the NHS. The national guardian’s office also provides leadership, training and advice for a network of over 560 “Freedom to Speak Up” guardians, based in all NHS trusts and foundation trusts.

Sir Robert’s review found that a number of people struggled to find employment in the NHS after making protected disclosures. He recommended that the Government should introduce protections for people seeking employment in the NHS on the basis that they had made a protected disclosure. The Government amended the Employment Rights Act 1996 through the Small Business, Enterprise and Employment Act 2015. New Section 49B gave the Secretary of State a power, through regulations, to prohibit certain NHS employers from discriminating against job applicants if it appears that the applicant has made a protected disclosure. The regulations are laid under that power.

The regulations give applicants a legal recourse through the employment tribunal or civil court, should they feel that they have been discriminated against, with appropriate remedies should their complaint be upheld. They also enable a job applicant to make a complaint to the employment tribunal and set a timeframe of three months within which a complaint to the tribunal must be lodged.

The regulations set out the remedies that the tribunal may or must award if a complaint is upheld. The employer may be ordered to pay compensation and the tribunal may recommend the employer to take specified steps. They also make provision as to the amount of compensation which may be awarded. An application to an employment tribunal under the regulations is subject to the early conciliation regime. This provides an opportunity to resolve the claim via the Advisory, Conciliation and Arbitration Service, known as ACAS. This should help to ensure that only cases that cannot be resolved through other methods are brought to the employment tribunal. The regulations also provide that discrimination by the NHS employer because the job applicant has made a protected disclosure is actionable as a breach of statutory duty. This gives job applicants additional protection, including the right to bring a claim, which would be in the civil courts, for breach of statutory duty, in order to, for example, restrain or prevent discriminatory conduct.

In summary, these regulations are an important step forward in improving the protections for NHS staff who speak up and will support our ambition to improve patient safety. I commend them to the House.

[Baroness Thornton (Lab)]

My Lords, I suspect this may be the Minister’s first statutory instrument, so I welcome her to the cohort of those of us who do this. I also congratulate her on her very good explanation of these regulations. I was a Minister when the first Francis report was produced, and I am very pleased to see these regulations before us. I have a number of questions of which I have given her warning. They are mostly based on the questions that my honourable friend Justin Madders asked last week when this matter was discussed in the Commons. I felt that the Minister there did not give adequate responses, so I am going to have another go. Let us hope we can do better this time.

I realise this is not pertinent to this statutory instrument, but why just the NHS? The Government need to think that there are other sectors, such as the financial sector, where whistleblowing protection is just as important and necessary. Additionally, these regulations do not apply to all NHS staff. There is partial protection for NHS workers. For example, are NHS England and the Department of Health and Social Care excluded? Why? Why are private providers within the NHS excluded from these regulations? What about pharmacies, clinical commissioning group workers, medical researchers and GPs’ surgeries? There must be whistleblowers in all those places and the staff in them surely deserve the same protection. What about staff who are transferred to wholly owned subsidiaries within the NHS? Will they be covered by these regulations? If not, why not?

The regulations apply across a range of issues in the NHS. Does the Minister recognise that by drafting regulations in this way the Government risk continuing rather than challenging the culture? While we might welcome the fact that Regulation 3 removes any restriction to action being available only in cases where a protected disclosure has taken place, we are concerned that the use of the phrase,

“because it appears to the NHS employer”,

might have the unintended effect of opening up a range of technical defences to NHS employers. Will the Minister consider, for example, an instance where a protected disclosure has taken place but the employer is able to argue that it did not appear to be a disclosure or even that it simply did not consider that a disclosure had taken place at all? This seems to be an anomaly involving the original whistleblowing legislation when an employee is dismissed or suffers detriment as a result of a protected disclosure and the regulations before us. An employee could find themselves without protection if it turns out that they have not made the disclosure but the employer has mistakenly concluded that they have. That appears to be at odds with the draft regulations, which suggest that it is irrelevant whether that individual has made the disclosure. The only consideration under the draft regulations is whether it appears to the trust that the disclosure has been made, so I would welcome any comments that the Minister might have about whether there are any plans to regulate this situation in the future, given that it will be for the court to interpret the employer’s belief and how the test is applied. Would not applicants be placed at a clear disadvantage requiring them to take expert legal advice?