Whistleblower who changed the law drops employment tribunal case

Dr Chris Day claimed he was unfairly dismissed by Lewisham and Greenwich Trust for whistleblowing in 2014. Two years later, he won the right to bring a claim against Health Education England as well and helping to secure new protections for junior doctors.

But today he has decided to withdraw his claims after six days of hearings at an employment tribunal.

According to a joint statement issued by HEE, Dr Day and the trust, Dr Day did blow the whistle in 2014 “by raising patient safety concerns in good faith”. It also said Dr Day “performed a public service in establishing additional whistleblowing protection for junior doctors”.

However, the statement said, “the tribunal is likely to find that both the trust and HEE acted in good faith towards Dr Day following his whistleblowing and that Dr Day has not been treated detrimentally on the grounds of whistleblowing”.

Dr Day’s legal battles have concluded after four years of claims and challenges at employment tribunals and the law courts.

He maintained he had been unfairly dismissed in 2014 by Lewisham and Greenwich Trust after raising concerns about unsafe staffing levels at the Queen Elizabeth Hospital in Woolwich.

When he repeated his concerns to HEE, he claimed the agency refused to place him at a new trust in London and removed his training number, making it impossible for him to further his medical education.

His claims against the trust and HEE have now been “dismissed upon withdrawal”. Though personally unsuccessful at employment tribunal, Dr Day has successfully closed a loophole in whistleblower protection for junior doctors.

Initially, he was blocked from including the training agency in his claims of wrongful dismissal, as a tribunal judged HEE was not his employer. This would have left thousands of junior doctors without any whistleblower protection against the agency.

In 2017, the Court of Appeal decided that junior doctors and HEE do have an employer/employee relationship, alongside the trust where a doctor is on placement. This meant doctors in training could bring actions against the agency through an employment tribunal.

This was tested in May this year when HEE told a tribunal it did not contest the new interpretation of the law and it agreed it is now a joint employer of junior doctors.

In a statement today, HEE said it “has always supported healthcare staff blowing the whistle, it is part of the education and training we oversee for new clinicians.”

“This process lead us to voluntarily agree a new legal route to hold HEE to account should whistle blowing doctors in training feel it necessary and it saw the law change to give access to redress through tribunal as well,” the statement continued.

This story was updated at 16.21 to clarify the three parties all agreed to the wording of the joint statement.