Junior doctor England Contract

Last updated:

Whistleblowing protection for junior doctors

The BMA has agreed legally binding protections with Health Education (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 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 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 employers 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

  • 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.

    It applies automatically to any eligible junior doctors in England, regardless of what contract they are on, and there is no need for juniors to sign any additional documentation to be covered.

  • 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.

     

    Is the new 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 regardless of what contract they are on. 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 illegal.

    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 as a result 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 as a result of an exception report – however this 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 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 was signed, it began automatically covering 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 is 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, 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 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 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 (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 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.

     

    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 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

  • Update on current legal progress

    What is the current status of Dr Day's claim against Health Education England?

    The Court of Appeal determined on 5 May 2017 that a fresh Employment Tribunal will consider whether Dr Day was a 'worker' of Health Education England under section 43K(1)(a) of the Employment Rights Act 1996.

     

    What is the status of the Agreement between the BMA and Health Education England?

    The Agreement remains fully in force and has not been affected in any way by the decision in Day v Health Education England.

    Read the full Agreement and how it works

     

    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 03001231233) 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 Health Education England in the employment tribunal, however anyone bringing such a claim will have to prove as a preliminary matter that Health Education England is their 'employer' for that purpose.

    If a claim is brought under s43K(1)(a), this will 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 may 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 have to be proved.

    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.

  • 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].