Junior doctor England Contract

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Whistleblowing protection

Read the latest guidance on the junior doctor contract 2016

The BMA has agreed legally binding protections with Health Education (HEE) for junior doctors who raise concerns in the workplace. This agreement, developed with HEE, NHS Employers and the Department of Health ensure that junior doctors will have legal protection if they are subjected to detrimental treatment by HEE as a result of whistleblowing.

In simple terms, you must not be treated unfairly or lose your job because you ‘blow the whistle’ on wrongdoing which could affect patient safety.

The legal protections agreed by the BMA with Health Education England (HEE) will apply retrospectively from 3rd August 2016. This is the model contract that HEE has sent to NHS Trusts, along with guidance and FAQs.

HEE is actively promoting this agreement to employers and will confirm to us as soon as this agreement has been formally signed by the first employer - whereupon it will protect all applicable junior doctors in England. We will update all information on this page once the BMA has received formal notification that this has occurred.

Read the BMA and HEE guidance document on the agreement

Read the full legal terms of the model contract

 Key information

  • What is whistleblowing?

    What is whistleblowing?

    This is the term used to describe raising concerns in the workplace.

    If you are a worker and you report a type of wrongdoing to your employer or another prescribed person - usually something you've seen at work, but not always - and the disclosure of this wrongdoing is in the public interest, you are protected by law.

    You must not be treated unfairly or lose your job because you 'blow the whistle' on wrongdoing that could affect the general public.

    What does this mean in the NHS?

    If you are an employee and you report that you believe that someone's health and safety is in danger, you are protected from any unfair treatment by your employer as a result of raising a concern in accordance with the law.

    The current legislation is contained in the Public Interest Disclosure Act 1998 and the Employment Rights Act 1996. Patient safety is of paramount importance in the NHS, and workers must feel able to raise concerns about wrongdoing in their workplace that could harm patient safety.

    What steps can I take to feedback to a person concerned, before the need to 'blow the whistle'?

    Often it is possible to have a conversation with somebody in the workplace before the need to do anything formal. However in circumstances where you are concerned that you may face victimisation for raising an issue in the public interest it would be appropriate to speak with the BMA's employment advisers who have access to legal support to help you in ensuring that any disclosures you make are protected at law.

    When making a public interest disclosure you should act in good faith, and on some occasions it may be better to make the disclosure in writing.

    Why is it important to address this issue?

    It is vital that junior doctors are able to raise any risks to patient safety in their workplace, free from fear that their job security may be threatened as a result.

    In the recent legal case Day v Lewisham and Greenwich NHS Trust, a claim was brought by a junior doctor who alleged that HEE was his employer, and that he should, therefore, be protected from detrimental treatment by HEE to which he alleged he had been subjected after raising issues about patient safety.

    In the circumstances of that case, an Employment Tribunal found that HEE was not his 'employer' for the purposes of the legislation, and this decision was upheld by the Employment Appeal Tribunal.

    The loophole in the law, raised by Dr Day in his case against Lewisham and Greenwich NHS Trust, has now been addressed with the agreement negotiated by the BMA with HEE, NHS Employers (NHSE) and the Department of Health.

    What has been done to solve the issue?

    The BMA has been working with the BDA, HEE, NHSE and the Department of Health to develop a legal agreement that will extend the whistleblowing protection in the law to the relationship between junior doctors and HEE.

    There will now be a provision in contracts that HEE have with local employers to protect junior doctors against unfair treatment from HEE, with the potential to give redress through the courts if necessary.

  • Who it affects

    How does this affect junior doctors?

    Junior doctors have a unique employment arrangement, which sees them contracted to work as employees - of a hospital trust for example - while they are simultaneously undergoing training in an arrangement with Health Education England (HEE).

    Despite it not being established that they are a junior doctor's employer, HEE can have significant influence over their career, ultimately having the right to terminate employment.

    It is important therefore that junior doctors are able to make protected disclosures of wrongdoing without fear of unfair treatment by HEE, yet the law on whistleblowing only covers the employee-employer relationship.

    Who is covered by the new agreement?

    Postgraduate trainees. A postgraduate trainee is defined as a doctor appointed by HEE to a relevant contract of employment, who retains a training number (such as a National Training Number or a Local Programme Number). The relevant contracts are as follows:

    • A training contract under national terms and conditions (new or old)
    • A contract with a Foundation Trust which is not under national terms and conditions
    • A contract for GP foundation or specialty training which is not under national terms and conditions
    • A contract for a clinical academic on a HEE training scheme

    Trainee dentists are also covered in a similar way. You're also covered if you are seeking to start training, or restart it after leaving, provided that the contract you're seeking to be appointed to by HEE meets above criteria above. So you would be covered even if you don';t have a training number or have gone out of programme.

    Will the new agreement be legally robust?

    The BMA's legal team has negotiated an agreement which properly protects all doctors and dentists in training.

    As soon as one of the agreements is signed, it will automatically cover all junior doctors in England, whoever their contract of employment may be with or is intended to be with when they start or re-start training. As part of this agreement, this protection will be backdated to 3 August 2016.

    How does the new agreement protect clinical academics on HEE training schemes with a university employer?

    As outlined above, the definition of a postgraduate trainee within the new agreement is a doctor appointed to HEE by a relevant contract of employment; including university employment, who retains a training number; this includes academic trainees that hold a NTN(A).

  • How it works

    Does this mean that HEE now acknowledge they are an employer?

    No, but they don't need to be. HEE have now accepted that they have significant influence over junior doctors' careers, and as a result, have agreed to take on the legal liability for detrimental treatment linked to whistleblowing, extending the provisions of the Employment Rights Act 1996 which apply to the employer-employee relationship to cover the trainee-HEE relationship as well.

    Will the claim process work in the exact same way?

    Under the current legislation, a claim against an employer would be brought in an Employment Tribunal. As long as they meet the BMA's criteria for having a minimum chance of success, such cases brought by our members will be funded by the BMA. The HEE agreement provides a contractual right to bring equivalent proceedings, but in the County Court or High Court. The BMA will fully fund County or High Court proceedings brought to enforce this agreement subject to the case meeting our basic merit criterion.

    How would I make a claim?

    If you feel that you have been treated unfairly by HEE as a result of raising concerns in the workplace, you should contact the BMA. Our legal advisers will be able to assess whether you have grounds to bring proceedings against HEE and, if so, to support you in bringing this claim.

    The agreement covers all junior doctors in England, not just BMA members, so if a non-member felt they wanted to bring proceedings they would have to seek independent legal advice and fund the proceedings themselves.

    What if there is a claim against both the employer and HEE?

    There could be a situation in which a junior doctor believes that both HEE and their employing trust have subjected them to detriment, and in such as this case, s/he they could bring proceedings in an Employment Tribunal against the employer and in the County Court or High Court against HEE. In the claim against HEE, the court would be able to take into account any damages awarded or settlement made on the same matters elsewhere.

    There is an indemnity clause in the agreement which means that, where HEE and an employer are both liable, they can split the compensation between them, or the court could determine each party's level of responsibility - meaning that there would be no effect on the overall amount of compensation for the trainee.

    Is there any difference between the protections in the new whistleblowing agreement and the full whistleblowing protection afforded to permanent non-training NHS Staff?

    Junior doctors already benefit from the same full protection afforded to permanent non-training NHS staff as against their NHS employer. The issues identified in Dr Day's case was whether HEE was also an 'employer' for the purpose of Part IVA of the Employment Rights Act 1996. The Employment Appeal Tribunal found that HEE was not an 'employer' under section 43K(1) of the Employment Rights Act 1996.

    The Agreement reached between the BMA and HEE provides contractual protection for defined Postgraduate Trainees as if they were a 'worker' of HEE in the meaning of section 43K, so that the same level of protection is provided where there is detrimental treatment as a result of making a protected disclosure. The key difference is that a claim will have to be brought in the County Court or High Court instead of in the Employment Tribunal. The remedies which can be claimed however are identical.

    What is the criteria of assessment the BMA use to establish whether to support a claim?

    For BMA members the cost of the claim brought under the HEE Agreement will be paid in full by the BMA, provided the claim meets the normal merit criterion of greater than 50% prospects of success.  This is exactly the same criteria that we use to determine support for claims against employers in employment tribunals.

    For non-BMA members, while the Courts can sometimes be more expensive they do allow the successful party to recover their legal costs from the other side (whereas the employment tribunals normally do not allow costs recovery), if you have a strong claim it can be better to bring it in the Courts rather than the employment tribunal where there is a choice of venue as you can hope to get your costs back.  However for BMA members it will make little difference, your claims are fully funded and you will be indemnified in respect of any legal costs for claims that the BMA supports.

    What if the BMA decide that my claim has less than the 50% prospect of success?

    In circumstances where your claim has been viewed as not having sufficient merit, you are still free to bring your own claim to the Courts. You may find it easier to get support from a 'no win, no fee' solicitor if the claim is going to the Courts under this Agreement, as the winning party can recover costs from the other side.

    Furthermore, if you were bringing a claim outside of the HEE Agreement in the employment tribunal you may find it difficult to recover your legal costs, and you may find your solicitors want to take a proportion of any damages you receive. Of course it is often inadvisable to bring a claim that has little prospects of success and if the BMA had turned it down you should think long and hard as whether you wish to continue.

  • What protections are in place

    Would I get the same level of protection?

    Generally the protections are the same, the provisions operate as if a trainee were a 'worker of HEE within the meaning of the term in the Employment Rights Act 1996, and they will enjoy an equivalent level of protection from HEE as they would with an employer in an Employment Tribunal. For example, a trainee could claim damages for any loss of earnings suffered as a result of the detriment, and would be able to make a claim for damages equivalent to compensation for injury to feelings.

    This agreement is also subject to the same limitations as the Employment Rights Act however, meaning it isnt possible to claim injunctive (an order to refrain from doing something) or equitable (a non-monetary judgement such as an order to do something) relief - this is to ensure the treatment of detriment by both the employer and HEE is exactly the same.

    How long does the agreement last?

    It doesn't have a fixed end date, but will come to an end automatically if the legislation to which it refers is revoked, or changed to allow postgraduate trainees to bring claims against HEE (i.e. making the agreement redundant). The agreement can be altered with the agreement and consent of the BMA and British Dental Association.

    Does the HEE Agreement have the power to give a worker their job back if their claim is successful?

    Reinstatement to employment is only available in a claim for unfair dismissal brought against an employer where there has been a termination of a contract of employment. As there is no contract of employment between HEE and Postgraduate Trainees (which was conceded by Dr Day in his case), there would not be a right of reinstatement even if it was shown that there was a statutory right to bring a claim in employment tribunal as a worker under section 43K.

    The HEE Agreement replicates the same remedies that would be available in the employment tribunal for a claim brought under section 47B for detriment on the grounds of making a protected disclosure. In short, even if Dr Day had won his case, or if we extended legislation to cover HEE, this still wouldn't have the effect of enabling a claim against HEE to result in a an order of reinstatement against an employer. The claim needs to succeed against an employer to achieve that. Under the Agreement it is possible however to obtain a declaration as to whether the actions or omissions of HEE were lawful. This can be a powerful remedy. 

    Does the HEE Agreement prohibit any future legal challenges on HEE's position as an 'employer'?

    We took care in negotiations to ensure that the HEE Agreement did not remove any rights from junior doctors. The HEE Agreement does not prevent a change in the law being made, or from Dr Day pursuing his case to the Court of Appeal, or from a junior doctor attempting to bring a claim in an employment tribunal against HEE by a different legal route.

    Furthermore, the HEE Agreement specifically provides that it will come to an end if there is a change to the Employment Rights Act 1996 which allows Postgraduate Trainees to make a similar claim for compensation or other remedy as being subjected to a detriment by HEE on the ground of making a protected disclosure, or if there is a binding determination upon HEE in the courts to this effect. To that extent, if the same level of protection was provided in a different way, the HEE Agreement would no longer be required and would come to an end.

    Is HEE's power to remove a NTN lawful?

    There are many lawful situations in which HEE can remove a NTN. As to how the HEE Agreement affects this, if a NTN were removed by HEE because the Postgraduate Trainee had made a protected disclosure, this could amount to an actionable detriment and the Postgraduate Trainee would have a cause of action to bring a claim against HEE in the County Court or High Court for breach of the HEE Agreement.

    How confident are you that the HEE Agreement is legally robust?

    We are very confident that the HEE Agreement is legally robust.  Four teams of lawyers, both solicitors and counsel (BMA, BDA, HEE & NHS Employers) have worked on refining this agreement over many months to ensure that it is fully effective. Furthermore the guidance document explaining the effect of the agreement has been jointly agreed between the BMA and HEE, in view of this it would be difficult in the extreme for HEE to deny the effect of the HEE Agreement when they have expressly acknowledged its legal effect in guidance they have signed off.

    Why didn't you seek an amendment to legislation instead of going down the route of an agreement with HEE?

    A legislative change would have been fraught with political and legal difficulty. If it would have been possible at all it would have likely taken a long time to achieve, during which time it would have been subject to changes in the political landscape, and subject to lobbying by other interested parties which may deflect or water down its intention. The Agreement with HEE gives junior doctors the same protections in law as a worker under section 43K(1) would enjoy, and was something that we were able to implement in a matter of months.

  • Legal opinions

    Counsel's opinion on the model contract is published below. In order to avoid prejudicing its legal opinion, the BMA does not normally publish legal opinions given.

    In this instance, the opinion was procured specifically in order to provide members with an explanation as to the basis of the agreement and with a view to publication. On this occasion, the BMA is satisfied that, given the views expressed in the opinion, there is no scope for publication to be prejudicial.

    Legal opinion on the model contract (Word)

     

    Watch the video

    Listen to Sarah Keogh explain the details of the whistleblowing agreement for junior doctors in England.

    You can also download the questions and answers.

     

    BMA legal opinion on HEE agreement

    Lawyers for the BMA in conjunction with lawyers for Health Education England, the British Dental Association and NHS Employers, have worked over a period of several months to put in place a legally robust solution to enable junior doctors to raise qualifying disclosures (i.e. whistleblowing) in confidence that they will be fully protected.

    We remain clear that the Agreement is enforceable and provides robust and effective protection to the Postgraduate Trainees as defined under the Agreement.

    Read our legal opinion (Word)

  • Further information