What’s Jeremy Hunt’s real view on whistleblowers?

Victoria Phillips is head of employment rights at Thompsons Solicitors

The Thompsons Solicitors weekly blog

 

Among the Labour and Crossbench amendments to the Enterprise and Regulatory Reform Bill which have been tabled to be moved at the House of Lords report stage, which starts next week, is one seeking to protect whistleblowers from victimisation.

 

It states “that a worker has the right not to be subjected to any detriment by any act by an employee or agent of his employer, done on the ground that the worker has made a protected disclosure.”

 

How the government responds to the amendment in the light of the letter sent last week to NHS Trusts by health secretary Jeremy Hunt will be fascinating.

 

Hunt called on the NHS to “recognise and celebrate” staff who had “the courage and professional integrity to raise concerns over care”. He warned that “gagging” clauses were being used to “frustrate” such whistleblowing.

 

He is, presumably, aware that the Enterprise Bill, as drafted by the government he is a member of, seeks to restrict whistleblowers’ rights by removing protection for those who blow the whistle about breaches of their own employment contract.

 

The Bill addresses this so-called “loophole” (as the government describes it) by amending the Employment Rights Act (ERA) 1996 so that qualifying disclosures must, in the reasonable belief of the worker, be made “in the public interest”.

 

So when Hunt asks NHS Trusts to “pay very serious heed to the warning from Mid Staffordshire that a culture which is legalistic and defensive in responding to reasonable challenges and concerns can all too easily permit the persistence of poor and unacceptable care,” would he agree, I wonder, that taking out breach of contract complaints will provide Trusts with greater authority to gag workers?

 

Why should a breach of a contract of employment be less in the “public interest” than other breaches of the law? What can be more in the “public interest” than a public authority not abiding by the contracts it makes with its workers? The implication is that those who complain about their contracts are “bad” whistleblowers, while the people in North Staffs who were too scared to reveal what was happening (probably because of their duties of confidentiality under their contract) would be crusaders for justice.

 

It’s not for the government to say what is or isn’t in the public interest anyway – that’s defined in the ERA and for an employment tribunal to decide.

 

Sure, the decision of Gary Walker, former chief executive of United Lincolnshire Hospitals Trust, to break a gag to go on the Today programme could be argued to be firmly in the public interest. We do not know all the details of Gary Walker’s case but what is curious about the case as reported is that there was any confidentiality clause at all in his settlement agreement. Section 43J of the ERA means that any provision in any agreement (including a compromise agreement) which purports to preclude a worker making a protected disclosure is void.

 

Why did Jeremy Hunt not just draw NHS Trusts attention to the existing law as set out in legislation. Or is this just another case of legislation by press release?

 

It’s ironic that by distinguishing “in the public interest” from other reasons, the government is handing the NHS, and other employers, exactly the kind of “legalistic and defensive” armour that Hunt complains of. Ministers are, as ever, making it up as they go along to make headlines. They should leave well alone.

 

Another amendment to the Bill, tabled by the government, is intended to implement the decision of the European Court of Human Rights in the case of Redfearn v United Kingdom, which involved a bus driver sacked after he became a BNP councillor.

 

The amendment disapplies the two year qualifying period for unfair dismissal if the dismissal was on the grounds of political opinion or affiliation.

 

There’s more information about the Redfearn case and the amendment in this week’s Labour and European Law Review bulletin. And I’ll be blogging about it soon.

 

 

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