Writing in 2007 in the British Medical Journal Anthony Frais criticised the decision of whistleblowers such as Graham Pink to blow the whistle on insufficient staffing where this impacted patient safety in the following terms:

Pink ignored the option not to whistleblow despite the repercussions on his career. With the odds of success against him, his action was undoubtedly supererogatory and heroic. But it is ‘heroic’ whistleblowers such as Pink who undermine the practice of whistleblowing. Doctors or nurses who do hold compelling evidence of serious malpractice may have had their decision not to whistleblow influenced by the fate suffered by somewhat naïve or perhaps over zealous whistleblowers.

The argument seems to be that because bad things happened to Pink (he was dismissed) because he raised his concerns about patient safety due to understaffing other staff who see other, perhaps more serious safety risks, may not report these because they too may be subject to detriment. The argument is, with respect, complete nonsense however true the assumptions may be. The proper response to that dilemma is instilling all health staff with the confidence that if they raise concerns about patient safety risks in the public interest they should not fear retribution from the bureaucracies of the NHS for doing so.

The furore over Pink’s victimisation in the early 1990s was a key impetus in the attempt to instill just such a confidence which culminated with the enactment of the Public Interest Disclosure Act 1998.

These legal protections are not working, as the Francis report into whistleblowing shows even for those who are able to assert the legal right to challenge their treatment at an employment tribunal.

The case of Dr Chris Day, which I summarised a couple of days ago, is a grotesque demonstration of the current inadequacy of these legal protections in the NHS. Dr Day alleges (and the parties agree) that he blew the whistle about staff shortages that placed very ill patients at unnecessary risk (the parties in the case all agree this happened and complaints were made in good faith) but alleges Health Education England – an NHS body who control a Dr’s career – victimised him because of that disclosure by blocking his ability to progress in his career. However, an Employment Appeal Tribunal (Day v Lewisham and Greenwich NHS Trust & Anor [2016] UKEAT 0250_15_0903) has ruled that because Dr Day was not employed (as an employee or worker) for Health Education England he is not a ‘worker’ for the purposes of section 43K of the Employment Rights Act 1996 and, therefore, despite the very substantial control Health Education England have on his future career prospects he cannot bring any action against them for allegedly victimising him.

The effect of the judgement is a grave one: it has found that despite the very considerable power Health Education England (and potentially other similar bodies) have over Dr’s careers and future employment they can now victimise Dr’s with impunity because so long as the Dr is not a worker they have immunity from facing challenge in an employment tribunal. As I highlighted in my last post the significance of this case is not – with all respect to Dr Day – whether he was in fact victimised for whistleblowing but whether there is any meaningful redress for any junior doctor who feels they have been victimised in their career by a ‘third party’ health body given the effective immunity from challenge that is the result of the judgement.

Enter the BMA?

Given the significance for thousands of Dr’s one would think that the British Medical Association – the trade union for junior doctors – would be leading the charge on this issue. Dr Day’s case is, however, being brought without BMA support but instead the case has been funded by an impressive crowdfunding initiative. When I first read about the case I assumed that this was because Dr Day was not a member of the BMA, but this is evidently incorrect.

The 54000 Doctors campaign, which is admittedly only one side of the issue has confirmed that the BMA did support the case only to withdraw five days before the deadline for the case to be lodged and that they have declined to support the appeal to the EAT.

The reason for the lack of support is, to quote from Dr Day’s summary, because:

Gateley [the solicitors instructed by BMA] claimed that the merits of the case had suddenly dropped below the relevant 50% threshold required for BMA support.

The “50% threshold” will be familiar to many trade union reps, a case that does not have it will not ‘have a reasonable prospect of success’ and so is not supported, a judgement that is sometimes overly cautious meaning good cases are not supported by the union (many of them then succeeding at tribunal, only without (formal) union support). However, on the facts Dr Day’s case (in respect of the appeal) probably didn’t meet this threshold for the reasons identified in the EAT judgment.

Given the significance of the case for its members this is a difficult position to be in; without a formal appellate judgement there was doubt about whether junior doctors were protected, and where there is doubt there is room for a union to collectively secure concessions. Therefore, there is an argument that pursuing a case that is likely to set an unhelpful precedent for members, even while securing gains if won would be harmful to junior doctors generally. There is merit in that argument.

It is noteworthy though that that is not the reasons given and the only reason is that the 50% threshold is not met. I am of the view – and it is certainly an argument I have had with union executives – that where a case has a strategic importance in defending a large number of member’s terms and conditions or legal protections it is often appropriate for the union to bring that case, even if they think they will probably lose; to quote the late Bob Crow “if you fight you won’t always win, but if you don’t fight you will always lose.” If nothing else, members can at least see that someone is standing in their corner defending their rights at work.

Certainly, if I were a BMA member I would be asking the union’s executive for an explanation of why it has not supported a case that has such a big impact on so many of its members and why, now the horse has bolted so to speak and there is an appellate authority (the EAT judgment), it is not now pursuing the fight and supporting an appeal to the Court of Appeal. I would also be encouraging my fellow members to be asking that same question in correspondence, to local reps and through the union’s democratic processes.

But if the decision was made not to support a legal challenge and, as set out above, I can see there may be valid reasons for that decision what I would expect is that the BMA would be doing something very significant given the 54000 members or potential members who have been shafted by this issue; it is not as if this is not an issue around which broad public support could be garnered on public safety grounds, especially in tandem with the scandal of imposition of junior doctor contracts. Why, for example, is this not a trade dispute on which separate industrial action has been contemplated?

Of course, I do not move in BMA circles so it may be that more is being done than I have said but I have certainly seen no evidence of meaningful activity or mobilisation of members on the issue (if there is such activity ongoing comments to highlight this are very welcome).

As it is though it strikes me as very unfortunate that workers have felt compelled to campaign for their rights at work outside of their trade union. I do hope that changes soon whether that approach is legal, industrial or political (or all three!).