Employment Rights Act 1996 (NHS Recruitment—Protected Disclosure) Regulations — House of Lords, 2018-05-01
Topic: Health
Dorothea Glenys Thornton (Labour, Centre-left): 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?