eMedCareers

Employment lawyer Philip Landau explains there are changes afoot.

The government has banned gagging clauses that stop departing NHS staff from speaking out about patient safety or care. This is otherwise known as “whistleblowing” and arises when a worker reports suspected wrongdoing at work. Officially this is called ‘making a disclosure in the public interest’

Hundreds of whistleblowers have in the past been silenced by the gagging clauses in their settlement agreements entered into at the termination of their employment .

The concerns about such clauses placed in the settlement agreements of NHS workers has arisen, not least as a result of the recent failings in certain NHS trusts, including Staffordshire where NHS workers were not openly able to raise issues that would have been in the public interest, such as death rates or poor care. Departing NHS staff will now be able to talk freely about such matters.

But what is the general law in relation to whilstleblowing whilst you are still at work, and what protection does it offer?

Well, the law protects employees if their disclosure is ‘protected’ (known as a “protected disclosure”).  The disclosure needs to be a “qualifying” one which means it has to relate to certain subject matters, namely; a criminal offence, a breach of legal obligation, a miscarriage of justice, danger to health and safety of an individual, damage to the environment or related to a deliberate attempt to conceal any of these matters. It includes widespread behavior by colleagues and managers which is considered to be acceptable practice by the organisation for which they work. Although the disclosure does not necessarily have to be correct, as a whistleblower, you must have reasonable belief that the information is true.

If you need to make a disclosure status with a protected disclosure, the following are the general steps that you need to consider:-

• Does your employer have a whistle-blowing policy? If so, you should follow the process if possible.
• Make the disclosure to your employer, unless there is good reason not to. If you believe your employer will either cover it up, treat you unfairly if you complained, or they have not addressed the issue after your having already notified them, then you can make the disclosure to a “prescribed person” who are independent to your employers.
• Keep a written note at all times as evidence of your disclosure and to whom. This includes making the initial disclosure in writing.

If you blow the whistle, you have protection from being unfairly dismissed if this is as a result of    your making a protected disclosure, and there is no qualifying period of service for such protection. You will also have protection if you are “victimised” once you have made a disclosure. This includes being ignored, being subject to unreasonable scrutiny, demotion, or being set unreasonable targets.

Along with this most recent change to NHS settlement agreements, The Enterprise and Regulatory Reform Bill is likely to introduce other amendments for the protection of whisteblowers in all sectors.  This will  include a widening of who can fall under the definition of ‘workers’- and which will include  contract workers.  This will offer protection to a wider number of workers in the NHS especially which often employs large numbers of contractors.

The recent scandal within the Mid-Staffordshire NHS trust and the problems encountered by gagging clauses has helped to highlight the changes needed to further protect those who blow the whistle.  Indeed, Lord Touhig who helped draw up the original legislation stated recently that “the legislation was drawn up in an era when scandals like Savile or Mid Staffs were not thought possible. It is simply not appropriate any longer and contains all sorts of problems.”

The transparency expected in modern workplace relations means we are likely to see a lot more whistleblowers- despite employers attempt to gag them.

emedcareers.com have partnered with specialist employment law solicitor Philip Landau, to bring you expert advice on your rights in all key areas of your working life. As a emedcareers.com user you are also entitled to receive a free initial consultation on all employment law issues from Philip. Philip can help with a number of legal problems; perhaps you feel your employer isn’t following their legal responsibilities, you believe you have been dismissed unfairly or you are unsure about clauses in your contract. Once he knows your specific situation he can let you know what your rights are and what action you can take. To get in touch with Philip, click here, fill in the form quoting ‘emedcareers’, and he will contact you to discuss. Alternatively call Philip on 020 7357 9494 or email him at pl@lzwlaw.co.uk.

Philip Landau is a partner, specialising in employment law, in the London legal firm Landau Zeffertt Weir.

Disclaimer. The information and commentary on the law on this website is provided free of charge for information purposes only. Every reasonable effort is made to make the information and commentary accurate and up to date, but no responsibility for its accuracy and correctness, or for any consequences of relying upon it, it is assumed by either emedcareers.com or Landau Zeffert Weir. The information and commentary does not, and is not intended to, amount to legal advice to any person on a specific case or matter. You are strongly advised to obtain specific, personal advice from a solicitor about your case or matter and not to rely on the information or comments on this site.

Employment lawyer, Philip Landau from Landau Zeffertt Weir Solicitors looks at the position:

If you are taking drugs, you could find your employers may turn into quasi-law enforcers if the Metropolitan Police Commissioner, Sir Bernard-Hogan Howe has his way.

It has recently been reported during his speech at an all-parliamentary group on cannabis and children, that Sir Bernard called for mandatory drug testing at work for millions of professionals in ‘all occupations’.  Sir Bernard said that the drugs testing of employees and the consequent fear of losing their jobs would act as a deterrent. He further suggested that employers would not have to turn informant on any staff who proved positive in a drug test.

According to a report last year, more than a million workers have drugs in their system and also found the number of workers testing positive rose by nearly 50% between 2007 and 2011. It is these types of statistics that are causing concern.

In some industries, such as rail and maritime, drug and alcohol testing is already mandatory and necessary as a regulatory requirement. Many would argue it does make sense for mandatory testing to be expanded to nurses and others in the medical sphere to be tested as there are obvious health and safety considerations in dealing with patients. Indeed, Sir Bernard highlighted workers such as nurses and transport staff where other people’s lives depended on the worker being free of impairment as being ripe for mandatory testing.

However if adopted, would mandatory drugs testing be disproportionate to your human rights and civil liberties?

One train of thought is that the human right to experience altered states of consciousness in one’s own time when one is not presenting any significant danger to others should be protected.  This is, after all, already the way we treat alcohol. And where does such interference by employers end? For example, should other areas of job applicants’ private lives also be vetted, along with the monitoring of their bank accounts?

There is also the morale factor.  Mandatory testing in the workplace will test the goodwill between staff too. Suspicions and gossip will be rife in the workplace and there will be question marks over both the accuracy and nature of the process together with the consistency of the testing. Is Sir Bernard suggesting all staff including senior managers should be tested?

The reality is also that employers are already under a duty to provide a safe working environment under the Health and Safety at Work Act 1974. This duty includes ensuring that no staff are allowed to work when impaired by the use of illegal drugs or alcohol. And yes, many employers will also already have a policy in place in their staff handbook to allow drug testing where suspicions are raised. Of course such consent to be tested is not mandatory for the employee, but it is possible to find yourself being disciplined by unreasonably refusing such a test.

As the law presently stands, it is highly likely that an employment tribunal would rule that a dismissal was fair and justified if there was evidence that drug or alcohol use affected performance at work, particularly if there were health and safety considerations. A tribunal is unlikely to find that there has been a fair dismissal, however, on the basis of some “casual link” however, nor accept some vague claim by an employer about how drug abuse is affecting their reputation.

We haven’t seen the end of this argument and it remains to be seen if mandatory drug testing at work is rolled out to all industries. This is unlikely to happen without a significant fight by civil liberty campaigners.

emedcareers.com have partnered with specialist employment law solicitor Philip Landau, to bring you expert advice on your rights in all key areas of your working life. As a emedcareers.com user you are also entitled to receive a free initial consultation on all employment law issues from Philip. Philip can help with a number of legal problems; perhaps you feel your employer isn’t following their legal responsibilities, you believe you have been dismissed unfairly or you are unsure about clauses in your contract. Once he knows your specific situation he can let you know what your rights are and what action you can take. To get in touch with Philip, click here, fill in the form quoting ‘emedcareers’, and he will contact you to discuss. Alternatively call Philip on 020 7357 9494 or email him at pl@lzwlaw.co.uk.

Philip Landau is a partner, specialising in employment law, in the London legal firm Landau Zeffertt Weir.

Disclaimer. The information and commentary on the law on this website is provided free of charge for information purposes only. Every reasonable effort is made to make the information and commentary accurate and up to date, but no responsibility for its accuracy and correctness, or for any consequences of relying upon it, it is assumed by either emedcareers.com or Landau Zeffert Weir. The information and commentary does not, and is not intended to, amount to legal advice to any person on a specific case or matter. You are strongly advised to obtain specific, personal advice from a solicitor about your case or matter and not to rely on the information or comments on this site.