Blacklisting is when someone, (or group of individuals) is seen by an organisation as a person (or group) who cannot be trusted or who have done something wrong. A blacklist can list people to be discriminated against, refused employment, or censored.
In employment terms, blacklisting refers to denying people employment for either political reasons (due to actual or suspected political affiliation), due to a history of trade union activity, or due to a history of whistleblowing, for example on safety or corruption issues.
The construction blacklisting scandal in 2009 uncovered a list of more than 3,000 workers who were considered to pose a risk to their employers if employed within the construction industry. The Information Commissioners Office conducted an investigation and raid of an organization called The Consulting Association. Trade union Unite claim that ten years on, blacklisting still exists in the construction sector.
The issue: Some of the most harmful victimisation can occur when a whistleblower has left their place of work, but finds out through references, emails, word of mouth or a more formal blacklist, that their reputation has been damaged. This can lead to the whistleblower struggling to find work, or in the worst cases, they find their career has been destroyed.
The Public Interest Disclosure Act (PIDA) 1998 provides a remedy against those organisations or managers who write the reference or use a blacklist to damage the worker, but provides no legal action against a perspective employer who denies a job opportunity to a whistleblower because they become aware of the whistleblower raising concerns in a previous job role.
The problem is PIDA does not see job applicants (those applying, interviewing or providing references for a job role) as ‘workers’, and the law only recognises those formally appointed to a position. The only exception to this is NHS job applicants who are who protected under PIDA from job application and beyond.
My name is Chris Day I am a junior doctor with a young family. One night in January 2014 I became a whistleblower. I did this without realising it and since then I have been very nearly swallowed up by an NHS made legal gap or ‘lacuna’ in whistleblowing law.
Prior to my baptism of fire into the world of public interest disclosures, I wrongly thought of a whistleblower as someone who chose for whatever reason, good or bad, to air their concerns publicly rather than pursuing them via the appropriate channels.
As a junior doctor working in an NHS Intensive Care Unit you become used to unexpected challenges and incidents.
The Intensive Care Unit where I worked, operated at night, with a doctor responsible for double the number of patients guidelines say they should be caring for. When one night in January two locum doctors did not attend for work on the hospital wards, and after discussion with colleagues, I phoned and emailed the Duty Senior Manager with my professional opinion on safety and with a request to secure alternative locum cover. I never imagined at the time that such an act would be regarded as whistleblowing. It is truly unbelievable the kind of path I have been forced down as a result of this telephone call - that plainly followed the basic duties of any doctor.
The medical regulator, the General Medical Council (GMC) clearly state that they will “exercise statutory powers” against doctors who don’t “take prompt action if [they] think that patient safety, dignity or comfort is or may be seriously compromised”.
Doctors that work in the NHS can find themselves in a ‘damned if they do damned if they don’t’ scenario where in the heat of the moment they have to choose between risking getting struck off by staying silent or the medical establishment coming down on them like a ton bricks if they say something somebody doesn’t like.
From speaking to other NHS whistleblowers, it has become clear my whistleblowing tribunal claim is far from unique. The combination of ignoring safety concerns, false allegations and very biased investigations with regulators and unions running a mile is what a number of NHS whistleblowers report. I find this both staggering and of some comfort as it seems my treatment at the hands of the medical establishment shouldn’t be taken too personally.
The true scandal of my situation is how the Government agency Health Education England with the full knowledge of the Secretary of State for Health, Jeremy Hunt, used taxpayer money to prevent my whistleblowing case being heard by an Employment Tribunal. The attempts to deny junior doctors full statutory whistleblowing protection were finally defeated this month in the Court of Appeal by my legal team with powerful intervention by Public Concern At Work.
The case has been covered by the BBC, ITV and multiple newspapers and journals. However, the profile of the case has had a very negative effect on the nation’s already demoralised junior doctors. The medical regulator, the GMC acknowledged this: “We recognise that a level of concern now exists among doctors in training in England about whether they are adequately protected in their relationship with Health Education England (HEE), and that, as a result, some may feel less secure about raising concerns for fear of suffering detriment to their career.”
What has also not gone unnoticed by junior doctors, is the lack of support from the Whistleblowing Guardian, Royal Colleges, the GMC or the medical union the British Medical Association, for an appeal that has successfully defended the whistleblowing rights of all junior doctors and vast numbers of agency workers. After seeking to undermine the appeal, the BMA response to our success in the Court of Appeal was to prevent me attending the Junior Doctors Conference and to refuse to welcome the decision. In contrast HEE, despite losing,“welcomed the decision of the Court of Appeal” and have now formally confirmed they will not be appealing to the Supreme Court. They have made no mention of the public money wasted in their unsuccessful attempt to undermine whistleblowing law.
The news from HEE that they are not appealing comes on the same day as the NHS losing another whistleblowing case in the Court of Appeal, the case of consultant cardiologist Dr Beatt.
It seems to me that the medical establishment needs to decide whether it wants a safe and transparent NHS or whether it wants the emphasis to be on protecting the reputation of powerful people and organisations As for me, three years after my phone call to an NHS manager about safety concerns, it’s time to have my whistleblowing case heard by an employment tribunal. I can’t help but think that there must be a better place other than an employment tribunal to deal with NHS staff that want to speak openly about safety and the NHS leaders that seem to want to crush them.
I am very grateful to Tim Johnson/Law, James Laddie QC, Chris Milsom and Protect (formerly known as Public Concern at Work) for all their hard work and support. More details on the case can be found at crowdjustice.com/case/junior-doctors-round-2
Section 43K of PIDA grants protection to employees, as well as
certain workers, contractors, trainees and agency staff who raise
concerns about wrongdoing, risk or malpractice which it is in the
public interest to disclose. But there are gaps in the law meaning
that some workers do not qualify for whistleblower protection.