Ministers should extend the legal protection for NHS staff who raise whistleblowing concerns through a system to also help those out of work find new jobs in the service, the Francis review has said.
The review concludes that existing legislation is not sufficient to protect staff from discrimination where they may be known to have raised whistleblowing concerns in the past.
Anecdotal claims of whistleblower “blacklisting” were raised by contributors to the review, including examples of interviews and job offers being withdrawn at the last minute and references being withheld for no reason.
In his Freedom to Speak Up review Sir Robert concludes existing laws are “weak” and should be strengthened as well as extended to cover more organisations and type staff.
He recommends that discrimination against whistleblowers during the recruitment process on the grounds they have raised concerns should be made a breach of either the Employment Rights Act 1996 or the Equality Act 2010.
He also recommends the list of prescribed persons to whom whistleblowing concerns can be made, under the Employment Rights Act, should be extended to include all national oversight, commissioning, scrutiny and training bodies.
It would include NHS Protect, NHS England, clinical commissioning groups, Public Health England, Health Education England and local education and training boards, as well as the Parliamentary Health Service Ombudsman.
This would have the effect of granting whistleblowers protection if they raise any concerns with the organisations named in the act. The review also said any changes put forward by the government should include all students working towards a career in healthcare. The government will publish its response to the review this afternoon.
Currently whistleblowers can take legal action if they suffer “detriments” after making what is described as “protected disclosure” under the Public Interest Disclosure Act.
But Sir Robert said the description of the law as a “protection” for whistleblowers was not accurate, adding: “The legislation does not provide an individual worker from guaranteed protection from suffering detriment… and contains no measure preventing such detriments from occurring.”
“There is no evidence that the prospect of an employment tribunal case deters victimisation.”
The review also concludes: “Where an NHS worker who has raised a concern cannot, as a result, continue in their current employment, the NHS should fulfil its moral obligation to offer support.”
It says NHS England, the NHS Trust Development Authority and Monitor should jointly create a “support scheme” for current and former NHS staff “whose performance is sound and who can demonstrate they are having difficulty finding employment in the NHS as a result of having made protected disclosures”.
Sir Robert said all NHS organisations should support such a scheme and help people to find alternative employment.