Former NHS whistleblowers who raised concerns in the public interest will gain legal protection from discrimination if they want another job in the service, under draft regulations.
The proposed powers mean that it will in future be illegal for NHS employers to discriminate against job applicants who have blown the whistle on patient safety issues in the past, said the government.
“For too long we have failed to protect those who are brave enough to speak out when others won’t”
It said that any job applicants who do face discrimination will get legal protection and potentially win compensation, while NHS employers will face tough penalties if the complaints are upheld.
It stated that the draft regulations, which are being laid before parliament today, would “empower staff to speak up and ensure that whistleblowers are not penalised for doing the right thing”.
The proposed powers form part of a wider government drive to develop a culture of openness and transparency and meet an “ambition of making the NHS the safest healthcare system in the world”.
If approved, they will prohibit NHS employers from discriminating against an applicant because they appeared to have previously made a “protected disclosure” under the Employment Rights Act 1996.
The changes were a key recommendation in Sir Robert Francis’ Freedom to Speak Up Review, which found a number of people had struggled to find NHS employment after raising safety concerns.
- Francis calls for stronger legal protection for whistleblowers
- Hunt accepts all whistleblowing recommendations in ‘principle’
- Hunt urges whistleblowing guardians to tackle ‘flawed’ NHS culture
Other measures resulting from the review included the creation of Freedom to Speak Up “guardians” in every trust, a national guardian and support to help whistleblowers back to work.
In March last year, NHS England launched a pilot to help primary care whistleblowers back into work and a similar scheme was started in September by NHS Improvement for secondary care staff.
- Support scheme to help whistleblowers back to work
- Pilot scheme to help NHS whistleblowers back to working
Care minister Caroline Dinenage said: “These important measures should ensure staff can raise concerns knowing they are protected by the law and that their career in the NHS will not be damaged as a result of wanting to do the right thing.”
“For too long we have failed to protect those who are brave enough to speak out when others won’t,” she said.
“We want to make the NHS the safest healthcare system in the world, so we must build a culture of openness and transparency among our staff,” she added.
In a speech to nurse leaders made earlier this month, health and social care secretary Jeremy Hunt highlighted the health service’s ongoing “journey from a blame culture to a learning culture”.
“We still make it far too difficult for people in the NHS to speak up when they see something that worries them,” he said at the chief nursing officer for England’s annual summit in Liverpool.
“If we are going to continue to I prove patient safety, then we need to be much better at supporting you and your colleagues to speak openly when things go wrong, about mistakes they’ve made or mistakes they’ve seen,” he told delegates.
In particular, he noted the “incredibly powerful” signal that nursing leaders could personally send to staff, in terms of encouraging them to speak up about mistakes they had seen or made.
“As directors of nursing, the one thing that will encourage other people to speak up about mistakes they’ve seen, or mistakes they’ve made, is if they see you doing the same,” he said.
Draft legislations include range of legal protections to:
- Give the applicant a right to complain to an employment tribunal if they have been discriminated against because it appears they have previously spoken out
- Set out the timeframe in which a complaint to the employment tribunal must be lodged
- Set out the remedies which the employment tribunal may or must award if a complaint is upheld
- Enable compensation to be awarded and make provision as to its amount
- Give the applicant a right to bring a claim, which would be in the civil courts, for breach of statutory duty in order to, amongst other things, restrain or prevent discriminatory conduct
- Treat discrimination of an applicant by a worker or agent of the prospective NHS employer as if it was discrimination by the NHS employer itself