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.