In front of the Employment Appeal Tribunal

25 January 2016: My case was featured on the Keiser Report!

How this case affects you

If you are a patient

Do you want the doctor treating you to have adequate whistle-blowing protection so that they can speak openly to their employer about safety? Do you think they will stick their neck out and put their career on the line for you or your care if they don’t?

If you are a Deanery doctor

Do you want the Deanery to be able to damage your career on account of something you say about safety or training without you being able to hold it to account for its actions in an Employment Tribunal – like an employer in any other sector?

The Deanery and its umbrella legal entity Health Education England is the only NHS body with power and responsibility over your hard won career, training pathway and long term employment.

If you want a safe and open NHS:

Health Education England is the only organisation with ultimate power over the long term employment of 54,000 doctors. Do you think it is right that they should be able to get out of being taken to an Employment Tribunal, and in doing so succeed in preventing serious issues in a whistleblowing case being heard in court?

Introduction

My name is Chris Day. I qualified as a doctor in 2009 and was on a formal career path to being a consultant. I am now over a year down a somewhat different road pursuing claims of whistle-blowing detriment in the Employment Tribunal and Employment Appeal Tribunal (EAT).

Why is the Case Important and Why CrowdJustice?

Instead of being prepared to account for their actions and defend a whistle-blowing case on the facts, Health Education England (HEE) or the Deanery have attempted to get out of being taken to an Employment Tribunal by attacking the employment rights of all Deanery doctors in the country. This is preventing important aspects of the case being heard.

They are doing this by attempting to argue approximately 54,000 doctors on a path to GP or consultant out of whistle-blowing protection. We are seeking Crowd Funding to challenge these actions by way of an appeal against an initial Employment Tribunal Judgment that allowed this approach by HEE. If we fail, the appeal Judgment will prevent future whistle-blowing cases involving Deaneries being heard in the nation’s Employment Tribunals. We simply believe doctors and patients deserve better protection. Our Crowd Justice campaign is as simple as that, but for those that would appreciate more explanation we flesh out some of the detail below.

What is Whistleblowing protection

Whistle-blowing sounds more dramatic than it actually is. All it means in legal terms, is a worker giving relevant information to their employer about safety, fraud or cover up. Whistle-blowing law offers protection to workers from detrimental treatment or dismissal on account of making what is termed a “protected disclosure”. All regular NHS staff have this protection. In addition student nurses, agency nurses and locum doctors are also covered by this statutory whistle-blowing protection. Yet, it has been argued by Health Education England that 54,000 trainee doctors do not have this entitlement to protect their career.

Whistle-blowing laws – protection from your employer - unless you’re a Deanery doctor!

For some reason whistle-blowing law is only located within employment statute. This means it only provides protection from detriment carried out by employers. Attacking the employment status of a particular worker can be an excellent strategy for defending a whistle-blowing claim without having to go near the facts of the case.

For the purposes of expanding whistle-blowing protection, the definition of an employer has been extended to encompass workers that are not employed in a conventional sense. We are using this part of statute to counter the Deanery’s claim to have no substantial influence over the employment of doctors. This particular part of the law is found in Section 43K of the Employment Rights Act and has particular relevance to the NHS. It extends whistle-blowing protection to agency workers, students and people on vocational training schemes. It is designed as a ‘catch all’ category to ensure all who work in the NHS have their careers protected by whistle-blowing law.

The NHS chooses to describe the nation’s experienced doctors below consultant grade as ‘trainee doctors’. This has the potential to cause confusion when considering their employment status and seniority. It can be a struggle for people not au fait with the NHS to tell the difference between what is meant by a medical student and what is meant by a trainee doctor. The former being a university student and the latter an experienced doctor that can be the most senior doctor on a team at night.

The long term employment of trainee doctors is exclusively tied up in an organisation known as a Post Graduate Deanery which is now termed Health Education England (HEE). In my litigation, Health Education England have chosen do deny any substantial responsibility for the engagement of their 54,000 trainee doctors so that they can say that they are not legally responsible for the damage they have done to my career. If this is not successfully challenged, it would leave no NHS organisation with responsibility for the long term employment of the majority of the medical profession below consultant grade.

Trainee doctors can be experienced professionals, they may only be months away from being appointed as a consultant. They can also be parents with families to support. It is wrong for them to have no protection from the only organisation with actual power over their career and long term employment.

Our appeal essentially argues that Deaneries or HEE, by recruiting doctors, supplying them to various Trusts, and monitoring the terms of engagement via an appraisal or ARCP process are in fact acting as an employment agency for the purposes of Section 43K(1) (a) and (2) of the Employment Rights Act. It would then follow that Deaneries are employing doctors for the duration of their training programs for the purposes of whistle-blowing protection.

Mr Hunt – Protecting student nurses but not doctors

On 19 November 2014, the Secretary of State for Health promised a “comprehensive response” regarding my whistleblowing case from his intended review of the NHS and Deanery formal investigations. On 8 December 2014, he then changed his position and proceeded to deny all legal responsibility for my whistle-blowing case and Health Education England relying on the Care Act 2014. He further states in his legal papers that he has “no knowledge of the facts in this matter and holds no documentation.”

In addition, two weeks after a Preliminary Hearing on 25 February 2015, where I was initially argued out of the right to have whistle-blowing protection for my career, Mr Hunt made an order to grant statutory whistle-blowing protection to student nurses. On 5 March 2015, this was incorporated into law by way of Section 43K(1) (cb) of the Employment Rights Act.

If our appeal fails, we will find ourselves in a situation where a student nurse could be in an operating theatre watching an operation and have their career protected by whistle-blowing law.

Yet, the senior registrar that might be performing the operation or the registrar that might be giving the anaesthetic would not have their careers protected by whistle-blowing law. This would be a surprising place to find ourselves post Francis and Mid Staffs.

My Whistle-blowing Case

My case involves an Intensive Care Unit that at night routinely did not adhere to national staffing levels as defined in ICU Core Standards. The Trust has accepted that a protected disclosure about safety and staffing was made to it on the night of 10 January 2014.

The alleged detrimental action and career loss stemming from the actions of Trust and Deanery are the subject of litigation. With this in mind, I am prevented from offering any further information due to the risk of prejudicing the legal process.

I would however like to make clear that my dispute is with senior managers at the Trust and Deanery and not with clinical staff at the hospital or my 2 consultant clinical supervisors with whom I felt I had very good relationships and from whom I received excellent supervisor reports.

The ICU in question is staffed by dedicated and kind professionals who, when I was there often went beyond the call of duty and were hugely competent in difficult situations. I learnt a great deal from them.

4 Against 1

Instead of fighting the case on the facts, the NHS, the Deanery/Health Education England and the Secretary of State for Health instructed 4 separate law firms against me. They argued that none of them could be held legally responsible for this situation or my future employment and an unfair dismissal claim was impossible.

Health Education England (HEE) or ‘the Deanery’ has argued in court (at my Employment Tribunal Preliminary Hearing on 25 February 2015) that doctors below consultant grade do not have the right to protection from victimisation if they whistle-blow to them.

Having 54,000 doctors not covered by whistle-blowing law in this way is not only bad for doctors, it could also be very dangerous for patients and could promote a culture of fear in the NHS.

Our Appeal

We recently won leave to appeal the Preliminary Hearing Judgment that agreed with HEE’s approach. If our appeal fails the Judgment will be binding on all future whistle-blowing cases. In other words, if we lose, Deanery doctors who can be experienced registrars close to being a consultant will not have their careers protected by the whistle-blowing laws that protect all other NHS staff.

We are going to a full appeal hearing on 10 February 2016.

The appeal was initially rejected on paper sift by the EAT, but this decision was reversed at an oral Hearing on 26 August 2015. The EAT acknowledged the importance of the appeal. Mr Recorder Luba QC stated:

“If the construction taken by the Employment Judge is right, then there would appear to be a lacuna in respect of the ability of a junior doctor to complain of detrimental treatment on account of a protected disclosure at the hands of the body responsible for his or her training and, ultimately career progress. It might be thought that this is something of a significant lacuna, if it exists, given the other categories of health related workers identified in the various subparagraphs of subsection 43K (1)…”

There is nevertheless an underlying general importance in the issue being clarified as between not only Dr Day and the Second Respondent but in respect of the interests of all other junior doctors who are following a program established by the Second Respondent Health Education England.”

The BMA

My Trade Union, the BMA, initially supported my case and their law firm, Gateley, were preparing proceedings against the Trust and Deanery. The BMA insisted that the NHS and Deanery carry out formal investigations. Suddenly, 5 working days before the claim had to be submitted and before the delayed Trust and Deanery formal investigations had reported, the BMA withdrew all legal help from the case and my BMA Senior Industrial Relations Officer went on “special leave”.

The actions of the BMA and Gateley have been criticised by the Legal Ombudsman who recommended a small award of compensation which I declined in order to keep my options open regarding the BMA.

The BMA are also failing to support our appeal. This is difficult to justify, as the appeal’s only focus is whistle-blowing protection for 54,000 doctors. The BMA refused to provide the legal advice they had received from a Barrister regarding the Appeal until 1 day after the deadline to lodge the Appeal at the EAT.

It is difficult to comprehend that firstly the NHS is spending tax payers money trying to argue 54,000 doctors out of whistle-blowing protection and secondly that the BMA are not opposing this and have indeed been obstructive to our efforts in the EAT by providing their legal advice after the deadline.

Our Personal Request for Help

As a family with two young children, this situation has been a lot to take on. We take the view that what we have done is worthwhile, and if successful will benefit other doctors and patients; but it has come at a huge cost to us as a family. Raising concerns in the NHS and whistle-blowing litigation is not for the faint hearted.

Many have helped us for minimal payment or no fee at all, in particular Tim Johnson/Law, Barrister Chris Milsom, Public Concern at Work, Patients First and Crowd Justice. However, as the litigation progresses the current arrangements will become unsustainable.

We are seeking £5,000 to help fund the appeal. As a second target, £50,000 will fund an 8-day whistle-blowing detriment Employment Tribunal involving the Trust. If our appeal is successful and Health Education England/the Deanery are re-instated into the claim, the Hearing could be extended to 12 days.

We thank you for visiting our page.

Chris and Melissa Day

About the claimant

My name is Chris Day, I have a young family with a 4 year old and a 2 year old. I qualified as doctor in 2009. I live in Woolwich and have friends and family that live close to Lewisham and Greenwich NHS Trust. I liked the people that I worked with at Woolwich hospital and want the hospital to succeed.It is difficult for me to accept that my career and my family’s long term security has been badly damaged on account of making a basic point to managers about staffing.