NHS whistleblowers will be better protected by new rules that prohibit them being “blacklisted” if they seek re-employment in the health service, according to the government.
Ministers said the plans published today for consultation would prohibit discrimination against whistleblowers when they applied for jobs with other NHS employers.
“Today we move another step closer to creating a culture of openness in the NHS”
They said the plans also strengthened the legal action that whistleblowers could access if they believed they have been discriminated against because they appeared to have blown the whistle.
The changes were recommended by the Freedom to Speak Up review, which found NHS staff had struggled to find employment in the service after making protected disclosures about patient safety.
The review into NHS whistleblowing, led by Sir Robert Francis, noted that staff that left their post, either voluntarily or not, after raising concerns could then find it difficult to find another job.
“The NHS can operate as a monopoly employer in many fields, and a contentious parting of the ways can result in an individual being disadvantaged when applying for a new role,” said the report. “This is unfair on individuals, and a waste of valuable skills and resource to the NHS.”
It also called for a support scheme to be set up for staff having difficulty finding employment that was related to having made a protected disclosure, and about whom there were no issues of justifiable and significant concern about their performance.
“The current fees for tribunals are a significant disincentive to whistleblowers”
As a minimum, it should provide guidance to employers to encourage them to consider a history of having raised concerns as a positive characteristic in a potential employee.
But Sir Robert said he was “particularly concerned” that current legislation – the Employment Rights Act 1996 or the Equality Act 2010 – did not cover the future employment of whistleblowers.
“It does nothing to protect people who are seeking employment from discrimination on the grounds that they are known to be a whistleblower,” he said in his 2015 report.
“This is an important omission which should be reviewed, at least in respect of the NHS. I invite the government to review the legislation to extend protection to include discrimination by employers in the NHS,” he stated.
As a result, the Department of Health is now seeking to amend the Employment Rights Act 1996 to enable regulations to protect those seeking recruitment with certain NHS bodies.
It said the proposed regulations would make it clear that discrimination against whistleblowers seeking NHS jobs or posts was prohibited, and that applicants had a legal recourse should they feel they had been discriminated against – with appropriate remedies should their complaint be upheld.
Overall, the measures would help embed an “culture that supports workers to raise concerns and welcomes new workers who have done so in the past”, said the DH.
Health secretary Jeremy Hunt said: “Today we move another step closer to creating a culture of openness in the NHS, where people who have the courage to speak up about patient safety concerns are listened to, not vilified.
“These welcome changes will prohibit whistleblowers being discriminated against when they seek re-employment in the NHS, ultimately ensuring staff feel they are protected with the law on their side,” he added.
But the Royal College of Nursing responded by warning that the cost of employment tribunals also needed to be reduced, as they discouraged people from taking action in such situations.
Janet Davies, chief executive and general secretary of the RCN, said: “We welcome all measures to support staff in raising concerns but the best way to provide safe patient care is to have enough staff in the first place.
“The current fees for tribunals are a significant disincentive to whistleblowers,” she said. “New employment rights are only valuable if they can be effectively enforced.”
She also called on Mr Hunt to listen to staff warnings over services “becoming less safe” due to workforce shortages and pressures on resources.
A consultation on the draft regulations – titled Protecting whistleblowers seeking jobs in the NHS – is now open and will run for eight weeks, closing on 12 May 2017.