Draft Employment Rights Act 1996 (NHS Recruitment-Protected Disclosure) Regulations 2018

Caroline Dinenage Excerpts

Wednesday 25th April 2018 General Committees

[The Minister for Care (Caroline Dinenage)]

I beg to move,

That the Committee has considered the draft Employment Rights Act 1996 (NHS Recruitment—Protected Disclosure) Regulations 2018.

It is a great pleasure to serve under your chairmanship, Ms Dorries. The draft regulations prohibit certain NHS employers from discriminating against job applicants who have disclosed certain information—often called whistleblowing. Applicants have a legal recourse should they feel they have been discriminated against, with appropriate remedies if their complaint is upheld. An NHS employer discriminates against an applicant if they reject the job application or otherwise treat them less favourably than other applicants.

We want to ensure that the NHS is the safest and most transparent healthcare service in the world. To achieve this, those who work in the NHS must feel safe speaking up and raising concerns at work, and confident that action will be taken without having a negative impact on their career or employment opportunities. The draft regulations will help to send a very clear message that openness, transparency and fairness should be the norm within the NHS. They will also increase the trust that patients, other service users and the wider public, have in the NHS.

We want NHS employers to be exemplars in fostering a culture of openness and willingness to report problems. We want an NHS in which lessons are learned, to provide the safest possible care for patients.

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[Caroline Dinenage]

I am grateful to the hon. Gentleman for his support in this important matter. For too long, we have failed to protect those who are brave enough to speak out when others do not. We learned from the Mid Staffs case about what happens when there is a defensive culture and people cover up mistakes. We want to make the NHS the safest healthcare system in the world, so we must build a culture of openness and transparency. If we are to do that, healthcare professionals need to feel that they are safe to speak out about problems in the workplace. We want them to feel safe in raising problems, so that speaking out becomes the norm and not the exception. These important measures should ensure that staff can raise concerns, knowing that they are protected by the law and that their career in the NHS will not be damaged as a result of doing the right thing.

The hon. Gentleman asked a number of important questions and I will attempt to answer as many as I can, but I will respond in writing on any that I omit, if that is acceptable. We need the draft regulations, in addition to the Employment Rights Act 1996, to protect people from detriment when they have spoken up in the public interest when they reasonably believe that they witnessed wrongdoing. “Worker” has a wide meaning in this context: the original legislation does not include job applicants, so the draft regulations address that. In addition, they provide that discrimination against a job applicant by an NHS employer is actionable as a breach of statutory duty. That gives job applicants additional protection and includes the right to bring a claim in the civil courts for a breach of statutory duty—for example, to prevent discriminatory conduct.

The draft regulations also treat the discrimination of an applicant by a worker or agent of the prospective NHS employer as if it were discrimination by an NHS employer. NHS staff who are prepared to speak out are an important asset, and workers who have previously had the courage and the compassion to do this should also be considered a valuable asset by the NHS body that is considering whether to employ them. I am sure that the hon. Gentleman agrees.

The draft regulations give NHS job applicants a right to complain to an employment tribunal if they feel that they have been discriminated against. The draft regulations set out a timeframe of three months, as he identified: that is consistent with the time limit for employment claims generally. The draft regulations also make it clear that, in the case of a decision by an NHS employer not to employ or appoint an applicant, the three-month time limit starts from the date that the decision was communicated to the applicant and not the time that the decision was made by the employer. The draft regulations enable the tribunal to consider a complaint that is otherwise out of time, if it considers it just and equitable in the circumstances.

[Justin Madders]

I know that the Government want to reduce the number of tribunal applications made. Does not the hon. Lady feel that there is a risk that, if employers are putting in applications not in possession of the full facts, more litigation would actually be encouraged rather than less?

[Caroline Dinenage]

The Government will keep that under review. It is important that we keep this as consistent as possible with the time limits for general employment cases, but if there do appear to be any issues along those lines, they can be reviewed.

The draft regulations also set out the remedies that the tribunal may or must award if the complaint is upheld. The employer may be ordered to pay compensation or the tribunal may recommend that the employer take other specified steps or make a provision on the amount of the compensation that may be awarded.

The application to an employment tribunal under the draft regulations is subject to the early conciliation regime, which provides an opportunity to resolve the claim via ACAS. We often find that, when people are able to resolve their differences via ACAS, it helps to alleviate the problem of someone who has had tribunal experience to the detriment of their future employment. It should also help to ensure that only cases that cannot be resolved through other methods actually reach the final step of an employment tribunal.

The draft regulations enable an employment tribunal to order compensation to be paid where there has been an actual breach of the prohibition on discrimination. The power to award damages is discretionary. Ultimately it is for the court to decide whether damages should be awarded, and we expect the court to take into account all the relevant factors when deciding whether that is appropriate, and to act fairly.

The hon. Gentleman is right to ask why the measures focus specifically on NHS employers. That was the original reason behind the legislation. The freedom to speak up is important, though, and we shall keep the regulations under review and assess their impact on the NHS before we assess the possible impact on other employers, such as social care providers.

[Justin Madders]

It was not just the fact that it is applied only to NHS employers, but that it is applied only to some NHS employers. I gave examples of various organisations within the NHS that are not covered by the regulations.

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[Caroline Dinenage]

I totally understand what the hon. Gentleman is saying—for example, GPs are not covered if they have independent contractor status, because the powers for the regulations in the 1996 Act are limited to NHS public bodies. As I said, though, we will keep all of that under review and come back to it if necessary.

We talked about future-proofing. As I said, we will review it over time. It is important that there are existing protections for employers as well; this is not just about employees. Under the draft regulations, the normal route for individuals would be via a normal employment tribunal. The fees have recently been abolished, and I do not think there are any plans to revisit that decision. The Government will keep the matter under review to assess the impact, before making any further decisions.

The hon. Gentleman mentioned the definition of a “worker”, which for the purposes of these regulations would carry the extended meaning under the Employment Rights Act. That is already a broad definition, and we will need to consider carefully whether there is a case for extending it. The test for discrimination includes the concept of appearance to the employer. That is actually in the primary legislation—the Employment Rights Act—and the regulations reflect that. We will again keep under review how that legislation is working.

If there are any questions I have not answered, I shall be happy to write to the hon. Gentleman. I commend the draft regulations to the Committee.

Question put and agreed to.