Protect Head of Advice & Advocacy, Bob Matheson, explains the case of Dr Chris Day and how it highlights the vital importance of reforms to UK whistleblowing law.
In 2018, Dr Chris Day contributed a blog for our website in which he described his whistleblowing story. It began: “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”.
The ‘legal gap’ that Chris referred to related to who could, or couldn’t, be accountable under whistleblowing legislation. Chris’s position was that Health Education England (“HEE”) – the body responsible for training junior doctors, and which had a tight grip on his career – had retaliated against him for raising patient safety concerns, and in doing so had curtailed his career just as it was getting started. HEE’s position was that the law didn’t apply to them, as they didn’t directly employ Chris.
Chris was not only successful in that legal battle, but also in shaping the law for future would-be whistleblowers. The underlying dispute eventually settled in contentious circumstances and for better or worse, that should have been the end of it. However, it wasn’t, and Chris had to enlist the support of prominent Parliamentarians to help rebut briefings that continued to be made against him 5 years after he raised whistleblowing concerns
One such briefing was by Dr Andrew Frankel, who had been the Post Graduate Dean of HEE during the time when Chris alleges that the organisation targeted him. Dr Frankel, who at this time had finished working for HEE, wrote the following to Sir Norman Lamb MP:
“For the five years whilst I worked for Health Education England I could not ever publicly talk about the issues around this case but now that l have retired I am completely at liberty to do so. I would be very happy to tell you what actually happened in this doctors case in order to ensure that you really are aware of the true facts […] I hope that you really will be open to hearing both sides of the story.”
Dr Frankel also sent Norman Lamb an 11-page briefing document.
Chris’s position was that this document was not only detrimental to him and motivated by long-running acrimony against him as a whistleblower, but that it was also demonstrably false. HEE’s position was that the law didn’t apply to Dr Frankel, as Dr Frankel no longer worked for them.
This time, just as before, Chris Day’s attempts to get individuals to account for their treatment towards him were responded to with technical legal arguments, rather than factual rebuttals. However, unlike before, HEE were this time successful in their legal arguments before the tribunal.
Chris Day’s rights not to be treated detrimentally as a whistleblower do not extend to not being treated detrimentally by Dr Frankel (as Chris alleges has happened). The tribunal will not be considering the probity of Dr Frankel’s actions and the truth – as with so many other aspects of Chris’s case – will remain hidden.
Had Chris been working in Dublin, there would be no argument as to whether Chris could bring a claim in these circumstances. In Ireland, you can bring a claim in tort against any individual who causes you loss because you are a whistleblower. The UK however, lags behind – with no current concrete prospect of catching up.
At Protect, we are campaigning for reform of whistleblowing legislation in this country. For Chris; for the 45000 people that we’ve advised in our organisation’s history; and for every would-be future whistleblower who’s brave enough to speak up and stop harm. Please support our campaign