By Kane Shaw, NHA Press and Media Officer
The NHA Party congratulates Dr Chris Day on his victory over Health Education England (HEE), who have been confirmed as the de facto employer of junior doctors in training and are therefore subject to whistleblowing law. Dr Day's tribunal against HEE can now proceed later this year. HEE's admission that it is an employer of England’s 54,000 junior doctors is a watershed moment in a long-running legal battle that has, at times, taken on Kafkaesque proportions.
Who is Chris Day?
In 2014 Chris Day was a registrar working at the Queen Elizabeth Hospital in London. During a night shift on the Hospital’s Intensive Care Unit he became aware that two locum doctors had failed to turn up for their shifts. This left him alone and without on-site supervision to care for 18 critically ill-patients, in spite of the fact that the Intensive Care Society’s guidelines stipulate that an ICU should have a doctor to patient ratio of 1:8.
Fearing for patient safety (this was not the first time that such an incident had happened), Dr Day raised his concerns with senior staff. Dr Day was not yet aware that, by raising these, he was in fact making what is known in legal parlance as a "protected disclosure". He had just become a whistleblower.
During his annual review Dr Day raised his concerns again. Not long thereafter he alleges that HEE removed his National Training Number (NTN), thus removing him from the regional training programme. Junior doctors only have a fixed term contract with each hospital they work at, and it is their NTN that allows them to continue employment on the training programme.
The Legal Case
In 2016, Dr Day took HEE and the Trust to an Employment Tribunal where he argued that, as he was an employee of HEE, he should have been protected from any adverse consequences that may have resulted from his whistleblowing. Despite the fact that it is through HEE that junior doctors are allocated to training posts and that it is only through the HEE that they can progress to further training, HEE managed to successfully argue they were not an employer of junior doctors as the term ‘employer’ was understood by the Employment Rights Act 1996 (ERA).
However, upon appeal on May 14th of this year, HEE was forced to concede that they are, in fact, an employer in this capacity as defined by legislation. This was in light of the fact that the original Tribunal ruling was based on a flawed reading of the definition of employer contained within the Act. But also, in light of the fact that that the HEE had set up a contractual agreement with the BMA in 2016 to extend the provisions and protections of the Act to junior doctors. The argument for this was that it was in the public interest, and that junior doctors should be able to take the HEE to a Tribunal for failing to adhere to the protections afforded to whistleblowers in the ERA. Consequently, the HEE’s position was contradictory in the extreme.
Chris Day’s victory is a victory for junior doctors across England. During a time of austerity and continued real terms cuts to services, it is vital that junior doctors have the protections they need to speak out on issues concerning public safety.
Past whistleblowers in the NHS have not been afforded the protections they needed and have suffered irreparable damages to their careers as a result.
The case has also raised as many questions as it has answered:
Why did the BMA fail to support a junior doctors on such a key issue?
Why did the HEE persist in spending thousands of tax-payers pounds to argue for a position it knew to be flawed?
Today is a day of victory for whistleblowing rights, but for Chris Day it is still a small step towards being able to prove that he was unfairly dismissed.