The Department of Health has released draft legislation seeking to protect NHS job applicants from discrimination where they have previously blown the whistle within the NHS.

A whistleblowing review carried out in 2014 found that a number of individuals found it difficult to find employment in the NHS after making protected disclosures about patient safety within the service. The Employment Rights Act 1996 (NHS Recruitment – Protected Disclosure) Regulations aim to address these issues by:

• Prohibiting discrimination by NHS employers during recruitment if it appears the applicant has made a protected disclosure previously;
• Providing a right to make a complaint to an employment tribunal if they have been treated less favourably on these grounds;
• Laying down a time limit of three months from the discriminatory act for the claim to be made, for example, three months from a refusal to employ the applicant, a failure to offer the job or a withdrawal of a job offer because the applicant has made a protected disclosure in the past;
• Providing remedies of compensation, of which there is no minimum or maximum limit, and recommendations where the NHS employer can be directed by the tribunal to take specific steps to remove or reduce the discriminatory effect on the applicant;
• Explicitly providing that discrimination by an NHS worker will be treated as discrimination by the NHS employer itself where the adverse conduct occurs in the course of their employment. An NHS employer would have a defence against vicarious liability if it can show it took all reasonable steps to prevent discriminatory conduct on these grounds.

The Consultation is aimed at creating a more open culture within the NHS and seeks to ensure that staff who make protected disclosures on the grounds of patient safety will not be vilified when seeking future employment. These regulations will ensure that workers feel supported, and encouraged, to raise concerns that are in the public interest and that NHS bodies will welcome workers who have raised concerns previously. If not, then applicants who are discriminated against on these grounds will have legal protection to make a complaint and this breach can be sufficiently remedied.

Lead Care Sector Advice Consultant, Lorna Stafford says: “This measure will make it even more important to keep comprehensive notes during a recruitment exercise so that any rejections of employment can be shown to be for reasons other than a previous disclosure if these are indeed the circumstances.”