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Dr Day Tribunal - Full statement

14 May 2018

On the Tribunal decision:

‘This particular hearing was on a complex legal issue around the potential for someone to have more than one employer for whistleblowing purposes. The case against Health Education England was originally dismissed as we were not deemed to be an employer. However, the Court of Appeal introduced a new dimension by asking the Tribunal to consider whether a second employer was possible.

‘Having never wished to do anything other than facilitate whistleblowing for doctors in training, HEE is happy to be considered as a second employer for these purposes if it removes a potential barrier for junior doctors raising concerns. That is why we did not contest this Tribunal.

On HEE and detriment:

‘The question around whether HEE acts in detriment to whistleblowers is an entirely different and separate issue. We have stated clearly, publicly, on many occasions that we encourage and support healthcare staff to raise concerns about patient safety.

‘To this end we worked with the BMA and NHS Employers to voluntarily introduce a new legal route for whistleblowers to ensure they could always take legal proceedings against HEE for detriment whether we were an employer or not.

‘To ensure all possible routes are available we both welcome the new designation as a second employer for whistleblowing purposes allowing action via the Employment Tribunal route but have also agreed with the BMA and NHS Employers to keep the alternative route via the High Court open as well. This will make HEE the only organisation in the country with two different routes for those wishing to argue it acted in detriment in response to them making a protected disclosure. Either way, our only aim was and is to ensure support for whistleblowers and the protection of patient safety.’

On the substance of the Dr Day case:

‘Of course this is not the end of the matter. Dr Day has claimed that he lost his job and suffered detriment. The truth is that Dr Day resigned, several times, despite HEE staff supporting him and trying to encourage him to remain on his training programme. We have been very clear all along that we strongly deny causing Dr Day any detriment.

‘Colleagues with years of dedication to the NHS, to education and to doctors in training under their care did all they could to support Dr Day and they deserve to have their side of the story told. They will now get that opportunity when the next hearing in this case is on that detriment issue. The hearing is this autumn and we will be refuting Dr Day’s claims and welcome the opportunity for HEE staff to have their say.’

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