NHS whistleblowers to be protected

NHS whistleblowers will be legally protected from discrimination when applying for another job in the health service.

The Employment Rights Act 1996 (NHS Recruitment - Protected Disclosure) Regulations 2018 will, from 23 May 2018, prohibit defined NHS employers (in England, Wales and Scotland) from discriminating against job applicants because it appears to the employer that the applicant has previously made a protected disclosure (‘whistleblowing’) within the meaning given by ERA, s. 43A.

This change was a key recommendation in Sir Robert Francis’s Freedom to Speak Up review which found that a number of people struggled to find employment in the NHS after making protected disclosures about patient safety.

Job applicants can complain to a tribunal if they feel they’ve been discriminated against on the basis outlined in the regulations. They’ll have three months in which to do so but a tribunal will have a discretion to hear complaints brought outside this time limit if it considers it ‘just and equitable’ to do so. The remedies available to tribunals are a declaration (which must be made in all successful cases); such compensation as the tribunal considers just and equitable; and a recommendation that the employer takes specified steps for the purpose of obviating or reducing the adverse effect on the applicant of the discrimination to which the proceedings relate.