The move comes as health secretary Jeremy Hunt is urging NHS trusts to “recognise and celebrate” staff who have “the courage and professional integrity to raise concerns over care”.
Hunt wrote to all trusts in England asking them 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.”
Yet the Enterprise Bill, as drafted by the government, seeks to restrict whistleblowers’ rights by removing protection for those who blow the whistle about breaches of their own employment contract.
The Bill amends the Employment Rights Act (ERA) 1996 so that qualifying disclosures must, in the reasonable belief of the worker, be made “in the public interest”.
Victoria Phillips, head of employment rights at Thompsons Solicitors said: “Perhaps Jeremy Hunt, when he warns that gagging clauses are being used to frustrate whistleblowing in the NHS, is unaware of what the government he is a member of is doing. By taking out breach of contract complaints it is providing trusts and other employers with greater authority to gag workers.
The reality is that the law as it stands does not actually allow employers to gag workers in the way that has been reported. Section 43J of the ERA means that any provision in any agreement (including in a compromise agreement) which purports to preclude a worker making a protected disclosure is void.
So the case of Gary Walker, the former chief executive of United Lincolnshire Hospitals Trust, who broke a gag to go on the Today programme is rather curious. It is not clear why there was any confidentiality clause at all in his settlement agreement.
Phillips suggested that rather than trying to legislate by press release, Hunt should simply draw NHS Trusts’ attention to the existing law as set out in legislation.
And if he genuinely wants to empower NHS workers to speak out, he should stop his government trying to distinguish between ‘in the public interest’ and other reasons. It is as much in the public interest to reveal that a public authSourceority is not abiding by the contracts it makes with its workers as it is that patient care levels are substandard.
Public interest is defined in the ERA and is for an employment tribunal to decide, not the government. It is clear that the coalition’s right hand doesn’t know what the left is doing and that ministers can’t be bothered to check the law before they pronounce on it in order to grab a headline.”
Related articles:
- Unite calls for NHS whistleblowers’ network
- Jeremy Hunt ‘out of his depth’ as Health Secretary, says Unite
- Hunt must go, says NUJ
