Whistleblowing in the NHS
Author: Darren Newman
Consultant editor Darren Newman considers whistleblowing in the NHS, focusing on the public interest test and the danger of working on the basis that an allegation is malicious.
The protection of whistleblowers - particularly in public services like the NHS - is an important public policy aim, and one that is reflected in employment law. An employee or worker who makes a "protected disclosure" is protected against dismissal or detriment and there is no cap on the compensation that can be awarded. The importance of protecting whistleblowers in the NHS is reflected in the Freedom to Speak Up policy introduced in 2016 following a review conducted by Sir Robert Francis QC. Not only does it pledge support for those raising concerns about patient safety or unsafe working conditions, but it also provides for Freedom to Speak Up Guardians in each NHS trust supported by the National Guardian's Office. We should not be blasé about the risks that someone is taking with their career when they raise serious allegations about their employer, so a national framework seeking to protect whistleblowers is a welcome development.
The difficulty comes in determining whether or not a complaint raised by an individual attracts whistleblowing protection. Perhaps surprisingly the original law introduced by the Public Interest Disclosure Act 1998 did not set out any requirement that a disclosure should be in the public interest. As a result, disclosures relating to strictly private disputes alleging, for example, a breach of contract could attract protection. The law was changed in 2013 to insert a requirement that any disclosure must (in the reasonable belief of the whistleblower) be "made in the public interest".
The recent case of Ibrahim v HCA International Ltd [2019] IRLR 690 EAT shows how this requirement may limit a claim. Mr Ibrahim was an interpreter at a private hospital and alleged that he had been subjected to a detriment after he complained that unfounded rumours were circulating about him to the effect that he had breached patient confidentiality. The Employment Appeal Tribunal accepted that this was a disclosure that tended to show that legal wrongdoing had occurred - spreading the rumours could amount to defamation - but held that the disclosure failed the public interest test. The issue of whether or not the individual was being defamed was a matter that was personal to him - it did not have any wider public interest element.
Ibrahim involves an individual concerned about his own reputation. In a hospital, the public interest test will normally be easy to satisfy. We all have an interest in how hospitals are run - both as taxpayers funding NHS hospitals and as the people who depend on the service they provide. The disclosure of any wrongdoing on the part of the employer is therefore likely to raise wider concerns about either the welfare of patients or the way in which public money is being spent. Even a straightforward breach of a doctor's contract, for example, might affect how that doctor performs their duties, and that is clearly capable of being a matter of public interest.
At the same time as the public interest test was introduced, another test was removed. Prior to 2013, a disclosure was protected only if it was made "in good faith". That requirement no longer applies - although a tribunal may reduce compensation by up to 25% if it finds that a disclosure was not made in good faith.
This may seem an odd reform - why should an individual acting in bad faith enjoy any protection at all? But an allegation made in bad faith may still be valid and important. Good faith is a question of the individual's motive for making the disclosure and the fact that an allegation is made out of hostility to an individual, or perhaps to deflect attention away from a performance management issue, should not absolve the employer from the responsibility of taking the allegation seriously. Indeed, Sir Robert Francis QC said in his review that: "Suggestions of ulterior purposes have for too long been used as an excuse for avoiding a rigorous examination of safety and other public interest concerns raised by NHS staff."
A deliberately false allegation will not, however, be protected. This is not a question of good faith, but the fact that the individual will not have a reasonable belief that the information disclosed tends to show that wrongdoing has occurred. Employers need to tread carefully here. Ultimately, a tribunal will judge whether or not an individual is protected. An employer might reasonably believe that an allegation is malicious, but if the tribunal disagrees this will leave the employer exposed. In Beatt v Croydon Health Services NHS Trust [2017] IRLR 748 CA the employer dismissed a senior consultant because of what it concluded were malicious allegations that were "wholly without merit". The tribunal disagreed and the trust was left with what was no doubt a substantial liability. In upholding the tribunal's decision, the Court of Appeal stressed that an employer that proceeds on the basis that a disclosure is not protected must take the risk that a tribunal will reach a different view. This was a reflection of the importance that Parliament had placed on the need to protect whistleblowers.
In litigation there may well be good reasons for challenging whether or not a disclosure made by an individual meets the technical test set out in the legislation. It might make sense for the employer to argue that they were merely making an allegation rather than disclosing any information, or that the information disclosed did not in fact tend to show that any wrongdoing had occurred. It might also make sense for the employer to argue that the individual could not reasonably believe that the disclosure was being made in the public interest. However, it would be a mistake for it to allow these arguments to feed into the way it manages the individual once any sort of disclosure is made. The ultimate defence to a whistleblowing claim is that the individual was not subjected to any detriment for making the disclosure in question. It will often be difficult to tell with certainty if a particular disclosure is protected. The best approach for employers is, wherever possible, to ensure that even an unreasonable and seemingly misconceived disclosure does not affect the way in which the individual is treated.
