Junior doctor England Contract

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Whistleblowing protection for junior doctors

The BMA has agreed legally binding protections with Health Education England (HEE) for junior doctors who raise concerns in the workplace. This agreement, negotiated with HEE, NHS Employers and the Department of Health ensures that junior doctors will have legal protection if they are subjected to detrimental treatment by HEE because of whistleblowing. In this guidance we will refer to it as the HEE Agreement.

A development in the case between Dr Day and Health Education England took place on 14 May 2018. See some new FAQs we have prepared below.

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) applies to potential claims from 3rd August 2016. This is the model contract that HEE has sent to NHS Trusts, along with guidance and FAQs (linked below).

HEE is actively promoting this agreement to employers and has confirmed to us that this agreement has been formally signed by the first employer - and is therefore protecting all applicable junior doctors in England.

The agreement is not linked to any particular employment contract and applies to junior doctors employed under both the 2002 and the new 2016 terms and conditions. The agreement is a contract between employers and HEE, it is not a separate contractual document that trainees need to sign.

Read the BMA and HEE guidance document on the agreement

Read the full legal terms of the model contract

Read guidance on 2002 and 2016 junior doctor contracts.

 

 Key information

  • Update on current legal progress

    The concession that Dr Day is a ‘worker’ of Health Education England (HEE) for the purpose of statutory whistleblowing protections is a welcome one for junior doctors, and reflects a positive change in Health Education England (HEE)’s position.

    However, it is surprising that having argued that they were not an employer of Dr Day under the statutory regime, HEE have at the last minute changed their position. This has led to understandable confusion amongst doctors about the scope and enforceability of their concession and what this means, and the status of the agreement between HEE and the BMA, BDA and NHS Employers, which HEE has confirmed remains in place.

    As a matter of legal principle, each employment tribunal must satisfy itself that it has the jurisdiction to hear a particular case. Future tribunals will not be bound by the concessions made by HEE, nor by the finding made by the tribunal in Dr Day’s case if they have concerns about jurisdiction. It would be open to the tribunal itself to raise the issue of jurisdiction, and potentially to decide that they do not accept that some or all postgraduate trainees are ‘workers’ of HEE. There is also nothing to prevent HEE legally from changing its mind and not making the same concessions in future. There is therefore still a possibility that a future junior doctor seeking to bring proceedings against HEE in an employment tribunal would have to show the tribunal that they are a ‘worker’ of HEE. This is why it remains important that the BMA/HEE Agreement stands.

    The BMA does not consider the concessions made at the hearing to be effective to operate the relevant termination clause in the Agreement, and HEE has issued a statement clearly stating that the Agreement will stand, despite suggestions at the tribunal that this might not be the case. Under the BMA/HEE Agreement, doctors in training falling within the definition of a Postgraduate Trainee, which includes applicants to training and those on out of programme breaks, will not have to prove they are a ‘worker’ in order to benefit from the protections offered.

    The most important role that the BMA has to play as a trade union is to decide what is most likely to give unequivocal protection for junior doctors, now and in the future. We have clear legal advice that what happened in the employment tribunal will not give watertight protection. It would be highly irresponsible of us as a union to agree that this is the answer for every junior doctor who might whistleblow in the future if we have experts telling us the very opposite. It could cause unacceptable vulnerabilities for our members. This is why the reiteration of our position is important: namely, that this is really positive for Dr Day, but that we would really recommend each case being examined by experts, so that the right route for seeking help if detriment is suspected is taken.

     

    Does this judgment affect all junior doctors or just Dr Day?

    The concessions made by HEE are of course welcome for junior doctors and reflect a change in HEE’s position as to whether it considers postgraduate trainees to be covered by the statutory protections. HEE previously challenged Dr Day’s status as a ‘worker’. EJ Freer (the judge who dealt with the preliminary hearing between Dr Day and HEE) has recorded his view that these concessions were properly made, however the actual finding of the tribunal as recorded in the order relates only to Dr Day. The question of whether a particular doctor will be able to bring a claim in an employment tribunal is a matter for the tribunal itself to determine in each case. Neither the finding of the tribunal in this case, nor any concessions made in this case or in the future by HEE will bind any future tribunal if it has concerns as to its jurisdiction to hear a matter.

     

    Is HEE’s concession binding in future cases?

    The BMA understands that it is HEE’s intention to offer the same concession in any future case brought by a postgraduate trainee. However, as a matter of law it is not bound by the concessions made and so could ask a future tribunal to determine jurisdiction. In any event, a tribunal itself can raise the issue of jurisdiction whether a concession has been made or not. This will be of particular concern in situations where the Agreement was intended to be broader than the potential scope of the statutory regime, for example in its inclusion of applicants to training programmes. This is why the BMA considers it important for junior doctors that the Agreement we have made with HEE stands.

     

    Does the concession operate the ‘kill switch’ on the Agreement?

    The BMA welcomes HEE’s public statement, which was issued before the tribunal’s Order was made, that the Agreement still stands. The BMA does not consider the concessions made at the hearing would be effective to operate the relevant termination clause in the Agreement. The clause requires a court or tribunal to make a ‘final determination or ruling which is binding’ on HEE. The order made by EJ Freer is a decision at ‘first instance’, so it does not bind any other tribunal. As it is open to HEE to change its mind about the concessions it has made, and the concessions would not in any event prevent a future tribunal from raising jurisdiction as an issue itself if it had concerns, there is no binding determination here which could operate to terminate the Agreement.

     

    What are the key differences now between undertaking a whistleblowing case through an employment tribunal and the BMA/HEE agreement?

    Under the BMA/HEE Agreement, doctors in training who fall within the definition of a Postgraduate Trainee will not have to prove that they are a ‘worker’ of HEE in order to benefit from the protection the Agreement offers. If a doctor seeks to bring a claim in an employment tribunal, the tribunal will still need to be satisfied that it has jurisdiction to hear the matter. While a tribunal is less likely to enquire into its jurisdiction where this has been conceded by a respondent, it will always remain open for it to do so at any point during proceedings. In that case, the doctor bringing the claim would still need to persuade the tribunal that he or she is a ‘worker’. In the circumstances, the Agreement between the BMA, HEE and NHS Employers remains a more secure route for claims to be brought.

     

    Can the BMA take HEE to an employment tribunal on a member’s behalf and avoid the high court route?

    If you are a BMA member and the BMA’s independent legal advisors assess your claim as having merits then the BMA would be providing you with discretionary funding for your claim. As such the costs of the claim would fall upon the BMA. Part of that assessment would involve determining the most appropriate forum in which to bring a claim.

    In addition to the issues mentioned above, where a claim has good prospects of success there are certain other advantages to issuing proceedings in the High Court under the BMA/HEE Agreement: firstly it increases the probability of securing a costs award against HEE (BMA members would be protected by the BMA’s indemnity in respect of the same); and secondly the costs pressure makes it more likely that HEE would act reasonably in settling meritorious claims at an early stage.

    There is also a longer limitation period in which to bring claims under the agreement, and no requirement to go through the process of early conciliation which is mandatory in tribunal proceedings.

     

    What happens next in the case between Dr Day and Health Education England?

    The matter will now progress to a final hearing where a tribunal will consider the underlying merits of the claim. This is due to be heard in the autumn.

     

    What should I do if I believe I have a whistleblowing claim against Health Education England?

    You should contact the BMA’s member relations team via the first point of contact service ([email protected] or 0300 123 1233) in the usual way to obtain support. You may be referred to the BMA's specialist solicitors who will assess the merits of your claim.

     

    Will the BMA fund my claim if I bring it under the Agreement?

    The BMA will fund legal representation in relation to members’ claims brought under the Agreement subject to the normal process of merits assessment by specialist solicitors.

    Read more about our legal support for cases

     

    Can I bring a whistleblowing claim against Health Education England in the employment tribunal?

    There is currently no bar to issuing a whistleblowing claim against HEE in the employment tribunal. However, anyone bringing such a claim will have to show as a preliminary matter that Health Education England is their 'employer' for that purpose. This is a question for the tribunal to determine in every case. Tribunals will not be bound by the finding made in Dr Day’s case, nor by the concessions made by HEE if it has concerns as to whether there is jurisdiction to hear a particular matter.

    If a tribunal did require an enquiry as to jurisdiction, this would require an examination of the terms on which an individual is engaged to work. Due to local and individual differences in training arrangements and terms and conditions of work this would need to be considered on a case by case basis.

     

    Would it be better for me to pursue a whistleblowing claim against Health Education England under the Agreement or in the employment tribunal?

    While every case would be considered on its own merits by our specialist solicitors, it is likely that you would currently have better prospects of success in this type of claim under the Agreement. This is because the Agreement provides protection on the basis that the doctor in training is already deemed to be a 'worker' of Health Education England, so this would not have to be proved as a preliminary matter. In the employment tribunal it would still be open to a tribunal to consider of its own volition whether there is jurisdiction to hear any matter, even if HEE were to concede the issue.

    There is also a benefit in bringing the proceedings in the County Court or High Court under the agreement as there is a better chance of recovering legal costs where a claim is successful, and enhanced limitation periods.

  • What is whistleblowing?

    ‘Whistleblowing’ refers to the act of a worker raising a concern about serious issues in the workplace, which may include malpractice or other serious health and safety concerns, which is done in the public interest. In certain circumstances, the raising of the concern will fall within the whistleblowing legal framework, which is set out in the Employment Rights Act 1996 (as amended by the Public Interest Disclosure Act 1998). 

    The legal framework calls such concerns ‘protected disclosures’ and gives legal protection to the person raising the concern. The law is designed to protect the person from being treated detrimentally or dismissed because they have raised the concern. This is to encourage workers to raise concerns at work, which are in the public interest, without fear of reprisals.

     

    What does this mean in the NHS?

    If you are employed in the NHS and you report a serious health and safety concern, for example you report that you believe that someone's health and safety is in danger or has been endangered, in certain circumstances you will be protected from your employer treating you unfairly or dismissing you because you raised your concern. For more information about when disclosing a concern gives you legal protection. Please read our guide to raising concerns.

    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'?

    Workers will often be wary of taking a formal step to address a concern. Serious concerns should be raised promptly and often it is possible to have a conversation with somebody in the workplace before taking any formal steps. If you think this may help to resolve your concerns and will not impact negatively on you, then it may be a useful starting point. However, in circumstances where you are concerned that you may face victimisation for raising an issue it would be advisable to speak with the BMA's employment advisers who have access to legal support to help you to try to secure that any disclosures you make are protected.

    When making a protected disclosure, we recommend, to protect yourself, that you either make your disclosure in writing or that you make a note of what you say and when you said it. Your disclosure should take the form of a factual description of the malpractice or other matter which you are concerned about.

     

    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.

    Junior doctors will be protected from detrimental treatment by their NHS employer if they make a protected disclosure. It is less clear whether the legal framework also offers protection from detriment by other bodies, including Health Education England (HEE).

    In the case of Day v HEE, HEE initially argued that it was not an ‘employer’ of Dr Day under the legal framework, such that he could not pursue a claim against HEE in which he alleged he had been subjected to a detriment as a result of raising protected disclosures.

    HEE did however recognise the importance of junior doctors being able to raise concerns. In the circumstances, the BMA worked with the BDA, HEE, NHSE and the Department of Health to develop a legal agreement which contractually extends the whistleblowing protection in the law to the relationship between junior doctors and HEE.

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

    It applies automatically to all eligible junior doctors in England, and there is no need for juniors to sign any additional documentation to be covered. In a preliminary hearing in Day v HEE in May 2018, HEE changed its position and decided to concede that the same junior doctors eligible under the Agreement for protection should also be able to bring a claim in the Employment Tribunal.

    This is a welcome development, however the concession made will not be binding on future tribunals and there remains the possibility that a tribunal may consider a particular junior doctor does not fall within the legal framework as regards HEE.

    Because of this possibility, the BMA considers it important that the Agreement with HEE providing protection by a contractual route remains in place. HEE has confirmed that the Agreement remains in force.

     

  • 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 HEE.

    Despite it not being established by a binding legal precedent that it is a junior doctor's 'employer' , HEE can have significant influence over their career, ultimately having the right to terminate training.

    It is important therefore that junior doctors are able to make protected disclosures of wrongdoing without fear of unfair treatment by HEE..

     

    Who is covered by the HEE 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
    • Certain contracts 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 if you are applying to join a training programme under the relevant types of contract, or if you take time out of programme, so long as you retain your training number.

     

    Is the new HEE Agreement related to the 2016 contract?

    During negotiations for the new junior doctor contract, the BMA raised concerns about whistleblowing protection for the trainee-HEE relationship as this was indicated as a significant issue by our members, in light of the ongoing legal case. Given that the terms and conditions of employment are a contract between the employer and trainee, it was established that there would need to be an agreement separately to any employment contract to cover the relationship between trainee and HEE.

    As such, separate discussions took place between the relevant organisations’ legal teams and the HEE Agreement was put in place. This agreement is between employers and HEE, and covers all eligible trainees in England. It is not linked to the 2016 terms and conditions. 

     

    Is exception reporting in the new contract a form of whistleblowing?

    Generally an exception report would not constitute a protected disclosure. Most often exception reports will be purely because an individual's work has varied from their work schedule, which isn't unlawful.

    If you exception reported a variation which caused you to breach the upper hours limits or rest requirements of the Working Time Regulations, this could be considered a qualifying disclosure as while these limits are intended to protect the personal safety of workers, for doctors they in turn protect the safety of the patients, i.e. members of the public.

    If an individual were to receive detrimental treatment by their employer because of making a protected disclosure via an exception report, they would be covered by the statutory protections outlined above. Similarly, the HEE Agreement would apply if the individual received detrimental treatment by HEE because of an exception report:– however, the Agreement would almost certainly never be required in this scenario as exception reports are a feature of the contract between junior doctors and their employer only. 

     

    Will the HEE Agreement be legally robust?

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

    As soon as one of the agreements was signed, it began automatically covering all eligible 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 is backdated to 3 August 2016. This means that it applies to all cases of detrimental treatment from 3 August 2016.

     

    How does the HEE 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, who retains a training number; this includes academic trainees under the applicable categories of contract who hold a NTN(A).

  • How it works

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

    HEE have 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, via the agreement negotiated by the BMA. HEE has now also conceded to an employment tribunal that it should be an ‘employer’ for the purpose of the provisions of the Employment Rights Act 1996. However, because the concessions made will not be binding on a future tribunal if it has concerns about whether a particular junior doctor falls within the legal framework as a ‘worker’ of HEE, it is important that the agreement remains in place. HEE has confirmed that the agreement still remains in force following its concession.

     

    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 HEE 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, 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 HEE Agreement which means that, where HEE and an employer are both found to be liable to pay compensation, they can split the payment between them, or the court could determine each party's level of responsibility. In either situation there would be no effect on the overall amount of compensation for the trainee.

    It would also be open to the junior doctor to seek to bring claims against both the employing trust and against HEE in the employment tribunal, however as discussed above such a junior doctor may still have to prove that they are a ‘worker’ of HEE, which he or she would not have to do under the HEE Agreement. 

     

     

    Is there any difference between the protections in the HEE 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 in relation to their NHS employer.  

    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 of the Employment Rights Act 1996, 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 would 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 decides 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 isn't 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, or if there is a final determination by a court which is binding upon HEE that the junior doctors covered by the Agreement are in fact covered by the provisions of the Employment Rights Act 1996 as regards 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, so there cannot be a claim for reinstatement. 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 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 final and 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 opinions on the model contract are 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.

     

    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.

    There have been some suggestions on social media that the agreement might lack legal force. A doctor who is fundraising to support a legal case that he is seeking to bring, commissioned a legal opinion from his Counsel (James Laddie QC) that makes an argument casting some doubt upon the effectiveness of the Agreement.

    In order to assure members we are therefore publishing two pieces of legal advice we have received upon the effectiveness of the agreement.

    The first of these opinions was produced by Mark Sutton QC & Sarah Keogh.

    Read the legal opinion from Mark Sutton QC & Sarah Keogh

    In response to an opinion commissioned by Dr Day, and provided by the QC leading his case, the BMAs' Senior Solicitor has published the following:

    Read the legal opinion of Gareth Williams, Senior Solicitor

    In September 2017 John Hendy QC was asked to look at this matter afresh and was provided with the opinion of James Laddie QC.

    Read John Hendy's opinion on the effectiveness of the Agreement

    The BMA also asked John Hendy QC & Sarah Keogh to provide a written legal opinion detailing their views on the implication of the case that Dr Day is seeking to bring.

    Read the written legal opinion on Dr Day's case

    We have also prepared a series of FAQs on this topic which help explain the issue further.

    Read the FAQs

  • Further information

    Read more about our legal support for cases

    If you have any further questions on the new whistleblowing protection guidelines, please contact [email protected].