Following on from an earlier piece examining the whistle blowing lacuna facing junior doctors, guest blogger Moosa Qureshi looks at the wider context of employment rights for junior doctors. Moosa is a specialty registrar in haematology, PhD candidate at Cambridge University and has a background in law and European languages. This article expresses his personal views, and has been adapted with his consent from a post to the Facebook Junior Doctor Contract Forum.
*UPDATE* Since publication the BMA JDC have ongoing work to implement schedule 8, section 8 so that it is effective in practice. Details are lacking at present, but possible strategies would see HEE as co-signatories and/or particular contractual obligations within HEE’s Learning Agreements. The author argues that junior doctors will only enjoy full legislative protection as whistle blowers if their employee/worker relationship with HEE is explicitly recognised.
Health Education England (HEE) is a workforce planning arms-length body, which can be argued to control, manage and direct the career progression of qualified doctors on training programmes that culminate in GP or consultant status (also known as ‘junior doctors’). It authorises national training numbers (NTNs) for these programmes, and can withdraw those same numbers, effectively terminating a junior doctor’s employment contract.
Recent allegations against HEE causing detriment to a junior doctor that disclosed information where patient safety was endangered sparked an interesting response; HEE argued that junior doctors have whistle blowing protection from employers, but that as it has no employment relationship with junior doctors, employment law does not apply to any of HEE’s own actions against junior doctors.
More worryingly, an Employment Tribunal has recently ruled that HEE can withdraw a junior doctor’s NTN, and hence terminate a junior doctor’s employment, without any legal supervision or oversight. This ruling has been upheld on first appeal.
If a not uncommon employment scenario is considered, the implications of this ruling for the basic employment rights of all junior doctors can be best appreciated.
HEE employment scenario
“You are a junior doctor. Your clinical supervisor takes a dislike to you and writes an unfair critical report on your performance to your Annual Review of Competence & Progression (ARCP) panel. HEE decides to accept this critical report because it relies on a clinical supervisor’s report to appraise the junior doctors they supervise. HEE dismisses your explanation, and states that you can only continue in the programme if you comply with certain conditions (these may include meetings with a mentor, psychological evaluation and support, additional training events on perceived areas of weakness etc.). This is all recorded in your online work portfolio. Beyond this, HEE can choose to directly remove you from your training programme through deletion of your NTN.”
Let us examine the key components of this scenario under employment law:
- Firstly, this scenario does not involve whistle blowing, and therefore is not covered by the Public Interest Disclosure Act 1998 (PIDA);
- Your clinical supervisor and your NHS Trust are your line manager and employer respectively, but they have not dismissed you from your post. Therefore you cannot plead unfair dismissal before an Employment Tribunal;
- HEE forces ‘remedial’ measures on you, whereby you implicitly accept that you have failings as a doctor. The implication that you are a poor doctor will follow you throughout your training and career, as sequential clinical supervisors access your online work portfolio;
- Where HEE remove you from your training programme (and hence indirectly from your post), you have no legal protection against HEE’s action as they are not your employer – you cannot appeal the decision at an Employment Tribunal.
The key messages from this scenario are as follows:
- HEE’s immunity from employment law is not only a whistle blowing issue – it is an issue of general legal employment protection for all junior doctors;
- This could happen to any doctor in training;
- It provides a clear mechanism whereby a person working for an NHS employer can cause detriment to a junior doctor by acting through a ‘training’ organisation (HEE), instead of through the formal employer.
Anecdotally, this is not simply a theoretical risk, although cases often do not come to public attention.
There have recently been several well-publicised cases providing evidence that healthcare organisations will treat doctors unfairly even where those doctors have acted in the interests of safeguarding patients. Lack of accountability will only exacerbate this tendency, therefore this apparent legal ‘loophole’ must be closed. Basic employment rights are arguably more important than financial remuneration, and the current junior doctor contract renegotiation between the British Medical Association’s (BMA) Junior Doctors’ Committee (JDC) and NHS Employers attempts to address this through contractual wording, though this cannot affect legislation.
Brexit, whistle blowing protection, nurses, medical students, and junior doctors
Questions have arisen regarding the current whistle blowing protection afforded to student nurses and proposals to extend protection to medical students, contrasting with the lack of protection for junior doctors. These questions relate to fundamental concepts of English law as well as the particulars of the Employment Rights Act 1996 (ERA).
Firstly, parliamentary sovereignty is a cornerstone of the UK (unwritten) constitution and means effectively that Parliament has complete freedom to pass whatsoever law it deems fit. No legal power can hinder Parliament in doing so. By a constitutional contrivance, Parliament has voluntarily submitted its sovereignty before EU law, but ‘Brexit’ will soon rescind this contrivance and fully unbridle the absolute power of Parliament. The fact that the UK has no written constitution means that our Parliament is not fettered by any constitutional safeguards and, post-Brexit, will have more power than the United States Congress or any continental legislative body. English judges can only apply Parliament’s laws and cannot challenge them, notwithstanding extremely rare instances of ‘creative interpretation’ from eminent judges, such as the late Lord Denning MR.
Parliament passed the Employment Rights Act 1996 and Part IVA of this act allows ‘workers’ to make protected disclosures (i.e. whistle blow) to their employers:
- Section 230(3) generically defines ‘workers’ as those who have an employment contract (‘employees’) but also those non-employees who have any contract – express or implied – to do work for another party to the employment contract;
- Section 43k within Part IV extends the section 230(3) generic definition of ‘workers’ specifically for whistle blowing, including various other categories, such as agency workers;
- Section 43k subsection 1(cb) specifically extends the meaning of ‘workers’ to include student nurses for the purposes of whistle blowing.
As Parliament says that student nurses are ‘workers’ for the purposes of whistle blowing, then they legally become workers. This is an example of Parliamentary sovereignty. Regardless of whether student nurses are in paid employment, a judge is bound to consider a student nurse as a ‘worker’ if Parliament passes an act which defines that nurse as a worker. Because Parliament has not defined medical students as workers for the purposes of whistle blowing, medical students are not legally workers. Judges do not have legal sovereignty (because, unlike Parliament, judges do not represent the ‘democratic will of the people’) and therefore cannot extend the meaning of ‘worker’ to include those who are not in any sort of paid employment e.g. to medical students.
Significantly, section 43k(4) gives the Secretary of State for Health power to simply order that medical students (or anybody else) can be added to the list of ‘workers’. This is how the Department for Health can plan to simply decide that medical students are workers, without needing any additional legislation from Parliament. Equally, Jeremy Hunt could order that junior doctors undergoing HEE-mediated training are workers, and thereby protect junior doctors from HEE if and when they whistle blow.
Conduct of the BMA and specious remedy provided in the proposed new contract
However, there is another important aspect to the legal vulnerability of junior doctors: the current legal lacuna is not only a problem of definition of junior doctors as workers or employees, but it is also a problem of definition of their employers. Thus far the Employment Tribunal has ruled that HEE is not an employer or even an employment agency for junior doctors. This ruling is looking to be independently appealed by a junior doctor, as the BMA have allegedly refused to support legal action for the protection of junior doctors against HEE.
The contract agreement between the BMA JDC and NHS Employers purports to provide a contractual remedy for the problem of HEE causing detriment to junior doctors who whistle blow in Schedule 8 section 8:
“A doctor making such a qualifying disclosure, whether under PIDA or directly to Health Education England, shall also have the right not to be subject to any detriment by Health Education England for raising such concerns… “
This remedy raises important problems and questions for the BMA:
The first problem is that this represents a contract between a junior doctor and an employer (e.g. a hospital trust). A contract is only binding on the parties who sign that contract, a fundamental principle of English contract law known as ‘privity of contract’. So if a junior doctor goes to an Employment Tribunal (ET) and says, “my new contract says that HEE should not cause me detriment for whistle blowing”, then the response of the ET judge will be: “How can a contract between A (junior doctor) and B (employing trust)… be binding on C (HEE)?”
To draw an analogy, it would be like if Fred signed a contract with Mike so that Fred could take possession of John’s house. The house belongs to John. If Fred wanted to possess John’s house, Fred would have to enter a contract with John, and not Mike. For Fred to say “I contract with Mike to take John’s house” has no legal effect. The BMA should be aware that Schedule 8 section 8 of the new contract offers absolutely no legal protection to junior doctors.
Secondly, as explained in the employment scenario above, HEE currently has the power to dismiss a junior doctor from a training programme for any reason it sees fit – not only for whistle blowing. This means that HEE can cause detriment to any junior doctor, and not only to those few junior doctors who are involved in whistle blowing cases. Furthermore, HEE has complete immunity from employment law if it chooses to do so. Schedule 8 of the proposed new contract ignores this important issue, which extends the risks posed by HEE impunity from a few whistle blowers to all junior doctors.
In turn, these problems raise serious questions for all junior doctors to consider:
- Firstly, during negotiations, if the BMA realised that this clause has no legal effect and offers no legal protection from HEE, then what motivation did they have for offering junior doctors a contractual ‘protection’ against HEE without legal effect?
- Alternatively, if the BMA did not realise this clause had no legal effect and genuinely thought that a contract between junior doctors and NHS Employers can bind HEE without HEE signing said contract, then how are junior doctors to have confidence in the provisions of the contract when their representatives during negotiations did not understand fundamental principles of contract law?
A credible and genuine remedy is required
From the above, it is clear that junior doctors can only be offered meaningful legal protection by:
- HEE acceding as a party to any proposed new contract and;
- HEE formally recognising an employment relationship with junior doctors.
This will make the ERA and PIDA applicable to HEE, and at the same time it will offer the general protection of employment law to junior doctors against an organisation which does, in most normally understood senses, demonstrate an employment relationship with junior doctors. HEE provides a significant proportion of a junior doctor’s salary, evaluates a doctor’s performance at work, allocates a particular hospital post to a doctor, and can withdraw a doctor’s NTN with the immediate effect of terminating his or her employment. HEE needs to stop pretending before the courts that it has only a peripheral and tangential relationship with the employment of junior doctors.
The recognition that HEE has an employment relationship with junior doctors will provide all the remedies of employment law (e.g. unfair dismissal, reinstatement, discrimination) rather than simply allowing a junior doctor to seek damages for breach of contract. For instance, an Employment Tribunal can force HEE to reinstate a doctor, whereas breach of contract would normally provide only financial reparations.
Regarding the practicality of achieving this legal protection for junior doctors, it is eminently feasible. Section 15 of Schedule 5 of the Care Act 2014 clearly states that HEE must cooperate with the Secretary of State for Health, and therefore it is very reasonable to require HEE to sign up to a contract that has been agreed with the Secretary of State i.e. the BMA should not have to enter a further process of negotiation with HEE, because HEE is already legally obliged to cooperate with the Secretary of State.
A worrying reason on why HEE object to being a party to the proposed new contract is if it wishes to preserve a mechanism whereby it controls doctor careers while escaping any accountability through employment law. This needs to be challenged powerfully by all stakeholders: the General Medical Council, the BMA, the medical profession, and all patients/patient groups who wish to be cared for by healthcare professionals who are free to blow the whistle when they see patients’ lives being endangered.
Whatever the outcome of the junior doctor contract referendum, the wider system must address this significant issue through contractual and extra-contractual means.