Senior MP wants lawyers investigated for role in whistleblower case

Liberal Democrat MP Sir Norman Lamb has written to the Solicitors Regulation Authority to ask it to investigate Hill Dickinson for what he has described as a “failure to disclose a key contract” between Health Education England and the Lewisham and Greenwich Trust in an early stage of the legal saga.

Sir Norman, a former health minister, believes the contract showed HEE was “imposing the terms under which junior doctors were employed by the trust”.

This was a key element in the legal action brought by junior doctor Chris Day in October 2014, he added. He suggested earlier disclosure would have had an impact on the judgments handed down by the employment tribunal at the first stage of the legal challenge.

However, HEE said in a statement it rejected this assertion, saying it provided the relevant documents and evidence “as requested at the appropriate point in the tribunal processes”.

Hill Dickinson said in a statement: “Hill Dickinson is aware of the recent letter to the SRA concerning Dr Day’s litigation in which we acted for HEE. It is for the SRA to assess the letter and we will cooperate fully with anything they may require.”

Dr Day claimed he was dismissed and treated unfairly by Lewisham and Greenwich and HEE because he was a whistleblower. He subsequently dropped the claim in 2018 but not before he performed what was described at the time in a joint statement from HEE, Dr Day and the trust as a “public service”. 

The judge at the first employment tribunal decided the trust alone substantially decided Dr Day’s terms of employment. This meant junior doctors did not have whistleblower protections against a detriment from HEE.

An appeal court judge rejected the employment tribunal’s decision and said both HEE and the trust could have substantial influence over employment terms.

The judge sent the case back to the employment tribunal to determine whether HEE had such influence. HEE “did not contest the case” and accepted it was a joint employer of junior doctors. It said it was “committed to allowing all those in the NHS to be protected for whistleblowing”.

HEE made a £55,000 contribution to Dr Day’s costs, and, in all, the NHS paid nearly £700,000 contesting Dr Day’s legal challenge. 

Sir Norman said the case had to be sent back from the Court of Appeal to a fresh employment tribunal because of “HEE’s failure to disclose the relevant contracts”.

Hill Dickinson both drafted the contract for HEE and the trust as well as representing HEE in litigation brought by Dr Day.

HEE eventually disclosed a copy of a contract between the trust and HEE’s predecessor organisation, the London Deanery. This document “rendered the argument made by Health Education England impossible to sustain,” Sir Norman said.

HEE disputed the assertion that disclosing the contract sooner would have affected the outcome of the tribunal hearings. Ian Cumming, HEE’s chief executive, said: “The relevant learning and development agreement and relevant evidence were supplied as requested at the appropriate point in the tribunal processes.

“It is wrong to suggest that specific documents presented at a different time would have determined the initial legal questions that were resolved in the Court of Appeal.”

An SRA spokesman said: “We have received a number of reports on this matter and are looking at all the available information before deciding on any next steps”.