NHS whistleblowers to get more protection under new Government proposals – but what about other workers?

28th March 2017

Government proposals to give greater protection for health service whistleblowers has to be a good thing – but why is this not being rolled out to all UK workers?

The law (the Public Interest Disclosure Act (PIDA)) provides protection where a worker is dismissed from a job they are appointed to because the new employer becomes aware of the worker blowing the whistle in a previous job. Unfortunately PIDA has not been drafted in a way that allows this protection to extend to the denial of a job opportunity e.g. where a worker is excluded from interview for a job or where references reveal they have blown the whistle in a previous job.

The Department of Health has launched a consultation - Protecting whistleblowers seeking jobs in the NHS - to ‘make clear’ that discrimination against whistleblowers seeking jobs with NHS employers is prohibited and that whistleblowers have a legal recourse should they feel they have suffered discrimination.

These changes have come from the whistleblowing review, Freedom to Speak Up which identified this gap in the law as a barrier to building an open and honest reporting culture in the NHS. Health Secretary Jeremy Hunt said: 'These welcome changes will prohibit whistleblowers from being discriminated against when they seek re-employment in the NHS, ultimately ensuring staff feel they are protected with the law on their side.'

The Government has developed draft regulations to prohibit an NHS employer from discriminating against an applicant because it appears to the NHS employer that the applicant has made a protected disclosure.

The proposed regulations aim to:

• give the applicant a right to complain to an employment tribunal if they have been discriminated against because it appears they have previously blown the whistle
• set out the remedies that the tribunal may or must award if a complaint is upheld, including the amount of compensation awarded.
• give the applicant a right to bring a claim in the county court or the High Court for breach of statutory duty in order to, among other things, restrain or prevent discriminatory conduct
• treat discrimination of an applicant by a worker or agent of the prospective employer (NHS body) as if it was discrimination by the NHS body itself.

Head of Policy at Public Concert at Work, Andrew Pepper-Parsons, said, ''We welcome this development but it is unclear why this increase in protection has been limited to those working in the NHS. Let us be clear the discrimination of whistleblowers is not isolated to the NHS and there are many examples of these practices in other sectors.

''There is the case of thousands of construction workers blacklisted from their industry for promoting or blowing the whistle on health and safety in their workplace. We’ve seen a financial regulator blacklist Martin Woods a whistleblower who exposed the money laundering practices at Wacohvia Bank, and Lisa Martin who struggled to find work in the care sector after raising the alarm about 19 suspicious deaths in the care home she worked in. These acts of victimisation are not covered by the proposed changes, and the Government need to explain why this is the case.”

Public Concern at Work will respond to the consultation which runs for eight weeks, closing on 12 May.