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Section 43K Employment Rights Act 1996 - whistleblowing protection

On 21 March 2017 the appeal in Dr C Day v Lewisham and Greenwich NHS Trust and HEE was heard by the Court of Appeal. Dr Chris Day was represented by James Laddie QC and Christopher Milsom, with Tim Johnson/Law acting as his solicitors.

The decisions of the Employment Tribunal and Employment Appeal Tribunal in Dr Day's case have led to the conclusion that there is a gap in whistleblowing protection for junior doctors in relation to Health Education England (HEE).

HEE has acknowledged that junior doctors should be protected and has introduced changes to the contracts it has with NHS Trusts to enable junior doctors to bring claims in the County Court or High Court.

That seems to us an inadequate solution as it would be complicated, expensive and risky for junior doctors to attempt this: see James Laddie QC's opinion. In any event as the case law stands junior doctors are not entitled to whistleblowing protection against HEE.

Dr Day's case has received extensive support. A late intervention by whistleblowing charity Public Concern at Work (PCaW) emphasised the importance of the outcome of this case. PCaW also drew the court's attention to the widespread negative effect that the Tribunals/ decisions would have on triangular employment relationships if they are not overturned. See here for more on PCaW's intervention.

We are currently waiting for the Court of Appeal's reserved judgement.

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