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.