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Employment Rights Act 1996 (NHS Recruitment—Protected Disclosure) Regulations

Volume 790: debated on Tuesday 1 May 2018

Motion to Approve

Moved by

My Lords, we are committed to building a culture of openness and transparency in the NHS to help make it the safest healthcare system in the world. We want to ensure that those who work in the NHS feel safe to make a disclosure in the public interest. This is often called speaking out or “blowing the whistle”.

When Sir Robert Francis QC carried out his Freedom to Speak Up review in 2015, he recommended a number of changes to help create an open and honest reporting culture in the NHS. The Government have therefore responded to these recommendations, in particular by establishing an independent national guardian, Dr Henrietta Hughes, to support NHS whistleblowers and improve the reporting culture in the NHS. The national guardian’s office also provides leadership, training and advice for a network of over 560 “Freedom to Speak Up” guardians, based in all NHS trusts and foundation trusts.

Sir Robert’s review found that a number of people struggled to find employment in the NHS after making protected disclosures. He recommended that the Government should introduce protections for people seeking employment in the NHS on the basis that they had made a protected disclosure. The Government amended the Employment Rights Act 1996 through the Small Business, Enterprise and Employment Act 2015. New Section 49B gave the Secretary of State a power, through regulations, to prohibit certain NHS employers from discriminating against job applicants if it appears that the applicant has made a protected disclosure. The regulations are laid under that power.

The regulations give applicants a legal recourse through the employment tribunal or civil court, should they feel that they have been discriminated against, with appropriate remedies should their complaint be upheld. They also enable a job applicant to make a complaint to the employment tribunal and set a timeframe of three months within which a complaint to the tribunal must be lodged.

The regulations set out the remedies that the tribunal may or must award if a complaint is upheld. The employer may be ordered to pay compensation and the tribunal may recommend the employer to take specified steps. They also make provision as to the amount of compensation which may be awarded. An application to an employment tribunal under the regulations is subject to the early conciliation regime. This provides an opportunity to resolve the claim via the Advisory, Conciliation and Arbitration Service, known as ACAS. This should help to ensure that only cases that cannot be resolved through other methods are brought to the employment tribunal. The regulations also provide that discrimination by the NHS employer because the job applicant has made a protected disclosure is actionable as a breach of statutory duty. This gives job applicants additional protection, including the right to bring a claim, which would be in the civil courts, for breach of statutory duty, in order to, for example, restrain or prevent discriminatory conduct.

In summary, these regulations are an important step forward in improving the protections for NHS staff who speak up and will support our ambition to improve patient safety. I commend them to the House.

My Lords, I suspect this may be the Minister’s first statutory instrument, so I welcome her to the cohort of those of us who do this. I also congratulate her on her very good explanation of these regulations. I was a Minister when the first Francis report was produced, and I am very pleased to see these regulations before us. I have a number of questions of which I have given her warning. They are mostly based on the questions that my honourable friend Justin Madders asked last week when this matter was discussed in the Commons. I felt that the Minister there did not give adequate responses, so I am going to have another go. Let us hope we can do better this time.

I realise this is not pertinent to this statutory instrument, but why just the NHS? The Government need to think that there are other sectors, such as the financial sector, where whistleblowing protection is just as important and necessary. Additionally, these regulations do not apply to all NHS staff. There is partial protection for NHS workers. For example, are NHS England and the Department of Health and Social Care excluded? Why? Why are private providers within the NHS excluded from these regulations? What about pharmacies, clinical commissioning group workers, medical researchers and GPs’ surgeries? There must be whistleblowers in all those places and the staff in them surely deserve the same protection. What about staff who are transferred to wholly owned subsidiaries within the NHS? Will they be covered by these regulations? If not, why not?

The regulations apply across a range of issues in the NHS. Does the Minister recognise that by drafting regulations in this way the Government risk continuing rather than challenging the culture? While we might welcome the fact that Regulation 3 removes any restriction to action being available only in cases where a protected disclosure has taken place, we are concerned that the use of the phrase,

“because it appears to the NHS employer”,

might have the unintended effect of opening up a range of technical defences to NHS employers. Will the Minister consider, for example, an instance where a protected disclosure has taken place but the employer is able to argue that it did not appear to be a disclosure or even that it simply did not consider that a disclosure had taken place at all? This seems to be an anomaly involving the original whistleblowing legislation when an employee is dismissed or suffers detriment as a result of a protected disclosure and the regulations before us. An employee could find themselves without protection if it turns out that they have not made the disclosure but the employer has mistakenly concluded that they have. That appears to be at odds with the draft regulations, which suggest that it is irrelevant whether that individual has made the disclosure. The only consideration under the draft regulations is whether it appears to the trust that the disclosure has been made, so I would welcome any comments that the Minister might have about whether there are any plans to regulate this situation in the future, given that it will be for the court to interpret the employer’s belief and how the test is applied. Would not applicants be placed at a clear disadvantage requiring them to take expert legal advice?

On Regulation 5, I echo the response of the British Medical Association, which raised concerns that the applicant might be able to obtain the required information about the conduct that might give rise to a claim only by using the Data Protection Act 1998, which is often a time-consuming process. Given how long it can take for an applicant to understand that they might have been discriminated against, is three months an appropriate time limit? At what point should the clock start ticking if a claimant becomes aware of the conduct, as is the case in negligence claims? How would they find out? Three months might not be sufficient time if they have to use the Data Protection Act to access that information.

Regulation 8 includes injunctive relief, restraining employers from imposing detriment or requiring any detriment to be brought to an end which seems akin to an interim relief application in respect of an existing employee. As a number of the consultation responses highlighted, the cost of bringing actions in a county court and the High Court is significantly higher than an employment tribunal. Will the Minister consider making representations to her colleagues in the Ministry of Justice about whether the cost regime used in employment tribunals could be applied in those cases? Will she comment also on whether there are any plans to reintroduce employment tribunal fees, which of course, as we know, are a barrier to justice?

Finally, although we on these Benches support the regulations, I hope that they are a first step. They are not comprehensive enough and I would like some indication from the Government that there is an intention to expand them to cover all employees in the NHS.

My Lords, on these Benches we too welcome the regulations. We note that they extend to just Wales and Scotland, and that they come on the back of the Francis review of 2015. I will make a few remarks and then I have a few questions.

In a sense, it is not before time, but last week I spoke to an NHS whistleblower who had given up. He has left the NHS and he is leaving the UK. He has been bullied and was passed over for employment. He had been threatened that, had he gone to an employment tribunal, it would be made sure that he lost, and therefore that he lost a lot of money on top of that. With some distance between then and now, his reflection is that in all NHS settings there are posters urging people, if they see anything that gives cause for concern, to contact their manager and that there will be no recrimination. This measure is too late for that individual.

I would like to ask the Minister some questions and I hope that her answers will clarify some of the things about which I am unclear. I said at the outset that the regulations extend to Wales and Scotland. With devolution, one might wonder why they do not extend to Northern Ireland as well. Echoing the question from the Labour Benches, to which NHS employers or category of employers do they not apply and why not? What is the reasoning behind this? What protections would be made available for a worker who supports a whistleblower? Often they can be tarred with the same brush. If two or more people are trying to raise an issue that concerns them but does not concern another body of the workforce, that can be a really uncomfortable place to be.

There has been no improvement in NHS staff’s confidence in reporting practice over the last four years, so how can we remedy that? Is the Minister confident that the regulations will change what is current practice? We know this from surveys of NHS employers. What support could the whistleblower themselves expect in new employment in the event of bullying and isolation, whether the employment is in the NHS or an arm’s-length body? The culture is in part still very much one of blame, despite the posters, so how does the Minister suggest that that should be overcome?

My Lords, I thank the noble Baroness, Lady Thornton, in particular for her good wishes. This is my first time at the Dispatch Box and I will endeavour to answer the many questions that have been put to me. I ask noble Lords to forgive me if I omit any; if I do, I will certainly write.

I begin with the question asked by the noble Baronesses, Lady Thornton and Lady Jolly: why is it that just the NHS is included, and which other organisations are excluded from these protections? As noble Lords know, these regulations are specifically focused on NHS employers and are not intended to cover employers in other sectors, which would be outwith the enabling powers under Section 49B of the Employment Rights Act 1996. Section 49B(7) of that Act defines “NHS public body” by reference to a list of bodies, thus the powers of the regulations are limited to those bodies only. Any amendment to that list would require primary legislation.

The noble Baroness, Lady Thornton, asked about the wording,

“because it appears to the NHS employer”.

Once again, the regulations reflect the primary legislation, which provides powers for regulations to prohibit NHS employers from discriminating because it appears that the applicant has made a protected disclosure.

The noble Baroness asked about the time limit of three months. We know that some respondents to our consultation were concerned that the three-month time limit was not long enough but, as the noble Baroness will know, it is consistent with the time limits for employment claims generally. Where discrimination involves an admission to do specified things, such as due process in job application, the time starts to run from the end of the period within which it was reasonable for the NHS employer to have acted.

On injunctive relief, in terms of making two complaints —that is, going to the employment tribunal and going to the civil courts—I think the noble Baroness was indicating that this may well be expensive. If there are dual proceedings, fees payable to the employment tribunal have recently been abolished so there will be no fees for that tribunal, and we are expecting that most cases, as I said in my opening remarks, will initially be conciliated and then go to the employment tribunal. However, we do not envisage dual proceedings except in the very limited circumstances that have been provided in the regulations. The noble Baroness asked whether we have any plans to reintroduce tribunal fees. No, there are no plans to reintroduce those fees.

On the issue of culture, the whole point from the Government’s perspective is that we need to ensure that the culture within the NHS is changed so that those people who want to highlight poor practice in the NHS, who are concerned about patient safety, have the right to speak up. It is very important that their rights are protected. Should they wish to move to a new employer, the regulations will help to safeguard them. Paramount is patient safety, and the regulations will go some way to addressing those issues.

I thank the noble Baroness, Lady Jolly, for also welcoming the regulations. I have already covered who they cover and why: it is because of the prescribed list, and we will need primary legislation if we are to amend it. However, we will keep the regulations under review and if we think that they need to be strengthened, we will look seriously at that. The whole issue is that we want the NHS to be the best employer and to protect the greatest asset that we have in the NHS: our staff.

The noble Baroness asked to which NHS categories the regulations do not apply. I think I have answered that question—yes, I am getting a nod there. The other question she asked was what protection is given to more than two people. Of course, the protection is there for someone applying for a new job, so it is relevant only to that individual. If there is another friendly person, the regulations do not cover them. Of course, in the wider aspect of work there may be some remedy under the Employment Rights Act 1996, but I cannot be sure from my basic knowledge.

What new support will we offer the person who has made the complaint, the so-called whistleblower? The whole point of the regulations and having this open, transparent, fair culture within the NHS is that it is very important for employers to have policies in place to tackle issues of concern. We are being supportive to ensure that these things do not happen.

I think I have answered most of the questions put to me. As I said, forgive me if I have missed anything: I shall write. Clearly, there are questions about how the regulations will work in practice. As I said, the Government will keep the regulations under review and consider issuing guidance.

To conclude, we want an NHS where lessons are learned to provide the safest possible care for patients. This is what it is about: actually changing the culture. The regulations will help to give a clear message that openness, transparency and fairness within the NHS should be the norm. They will also improve the trust of patients, other service users and the wider public. They will support NHS employers to be an exemplar to others in fostering a culture of openness and willingness to report problems with care.

NHS staff who are prepared to speak up are a very important asset. We want NHS staff to feel confident that when they speak up in the public interest it will not have a negative impact on their career. We want NHS employers to be exemplars in fostering a culture of openness and willingness to report problems. We want a culture in which lessons are learned to provide the safest possible care for patients.

The regulations are an important step forward in achieving those aims. I commend them to the House.

Motion agreed.