HEE accepts it is an employer of junior doctors

The national education and training provider told HSJ it “did not contest the case” that it is a second employer of doctors in training for the purposes of them raising concerns when the tribunal involving junior doctor Chris Day got underway today.

HEE said in a statement it is “committed to allowing all those in the NHS to be protected for whistleblowing”. It agreed with the tribunal that “any barriers that may have been seen to exist should be removed”.

The statement added: “To ensure that all possible routes are available to healthcare staff who need to raise concerns in the interests of patient safety, we have also agreed with the British Medical Association and NHS Employers that the alternative legal route we had previously negotiated will also remain in place.”

Dr Day, who claims he was unfairly dismissed by Lewisham and Greenwich Trust for alleged whistleblowing in 2014, was barred from including HEE in his claim during an employment tribunal in 2016.

The tribunal said junior doctors did not have an employee-employer relationship with HEE, despite the fact it can take steps to prevent a doctor from progressing in their training.

Dr Day brought the case to the Court of Appeal last year, which resulted in new whistleblowing protection for junior doctors.

The court said both trusts and HEE could be considered employers if they both substantially determined terms and conditions for junior doctors.

A Hospital Consultants and Specialists Association spokeswoman said the acknowledgement by HEE that it is a joint employer of trainees is “long overdue”.

She said: “This is an extremely significant moment. Doctors in training can at last feel confident that they have the right to hold HEE accountable for decisions it makes which affect their employment, even though it is not their workplace employer.”

The BMA said it welcomed HEE’s concession to Dr Day that a similar level of protection should be extended to him as the union negotiated under the new junior doctors’ contract.

In a statement, the BMA said: “HEE have confirmed that the agreement negotiated between the BMA and HEE remains in force to provide reassurance to postgraduate trainees that they will be protected from detriment where concerns are raised in the public interest.”