Employment Rights Act 1996 (NHS Recruitment—Protected Disclosure) Regulations — House of Lords, 2018-05-01
Topic: Mixed Topics
Zahida Manzoor (Conservative, Centre-right): My Lords, we are committed to building a culture of openness and transparency in the NHS to help make it the safest healthcare system in the world. We want to ensure that those who work in the NHS feel safe to make a disclosure in the public interest. This is often called speaking out or "blowing the whistle" When Sir Robert Francis QC carried out his Freedom to Speak Up review in 2015, he recommended a number of changes to help create an open and honest reporting culture in the NHS. The Government have therefore responded to these recommendations, in particular by establishing an independent national guardian, Dr Henrietta Hughes, to support NHS whistleblowers and improve the reporting culture in the NHS. The national guardian’s office also provides leadership, training and advice for a network of over 560 "Freedom to Speak Up" guardians, based in all NHS trusts and foundation trusts Sir Robert’s review found that a number of people struggled to find employment in the NHS after making protected disclosures. He recommended that the Government should introduce protections for people seeking employment in the NHS on the basis that they had made a protected disclosure. The Government amended the Employment Rights Act 1996 through the Small Business, Enterprise and Employment Act 2015. New Section 49B gave the Secretary of State a power, through regulations, to prohibit certain NHS employers from discriminating against job applicants if it appears that the applicant has made a protected disclosure. The regulations are laid under that power The regulations give applicants a legal recourse through the employment tribunal or civil court, should they feel that they have been discriminated against, with appropriate remedies should their complaint be upheld. They also enable a job applicant to make a complaint to the employment tribunal and set a timeframe of three months within which a complaint to the tribunal must be lodged The regulations set out the remedies that the tribunal may or must award if a complaint is upheld. The employer may be ordered to pay compensation and the tribunal may recommend the employer to take specified steps. They also make provision as to the amount of compensation which may be awarded. An application to an employment tribunal under the regulations is subject to the early conciliation regime. This provides an opportunity to resolve the claim via the Advisory, Conciliation and Arbitration Service, known as ACAS. This should help to ensure that only cases that cannot be resolved through other methods are brought to the employment tribunal. The regulations also provide that discrimination by the NHS employer because the job applicant has made a protected disclosure is actionable as a breach of statutory duty. This gives job applicants additional protection, including the right to bring a claim, which would be in the civil courts, for breach of statutory duty, in order to, for example, restrain or prevent discriminatory conduct In summary, these regulations are an important step forward in improving the protections for NHS staff who speak up and will support our ambition to improve patient safety. I commend them to the House.