Court of Appeal Hearing Expedited From 27 November 2017 to 21/22 March 2017
Our below application for expedition has been successful and the case has now been allocated a date by the Court of Appeal. The appeal has been listed to be heard on either 21 or 22 March 2017 in the Royal Courts of Justice, Stand, London WC2.
Background to the expedited Appeal
In October 2014 Dr Chris Day, a junior doctor submitted whistleblowing claims to the Employment Tribunal for the loss of his career.
Instead of arguing the case on the facts, NHS Health Education England (HEE) argued that whistleblowing law could not be applied to it in order to protect a junior doctor’s career. This prevented the important facts of Dr Day’s whistleblowing case being heard. Taxpayers’ money was used for this purpose, only weeks after publication of the Francis ‘Freedom to Speak up Review’ into Mid Staffordshire calling for a change of culture in the NHS.
Despite being the only NHS body with ultimate power over a doctor’s career, HEE successfully argued that they did not have substantial influence over a doctor's career or employment for the purposes of Section 43k of the Employment Rights Act. This created an apparent gap in whistleblowing law that has so far prevented the facts of Dr Day’s whistleblowing case being heard by any court or tribunal. In March 2016 this became binding on all junior doctors depriving them of statutory whistleblowing protection for their career.
In August 2014, the case initially passed a BMA merits assessment and the BMA's external lawyers provided legal papers and the BMA made legal threats naming the London branch of Health Education England as being subject to whistleblowing law. Five working days before a legal deadline the BMA withdrew all support for the case. The BMA have spent many months denying that there is a problem or apparent gap in whistleblowing law before finally releasing a statement accepting the gap in August 2016.
Our Court of Appeal case seeks to show Health Education England’s substantial influence as an ERA S43k employment agency and to close the apparent gap in whistleblowing law that is preventing the Day case being heard in full and junior doctors enjoying statutory whistleblowing protection for their career.
The Lord Justice granting leave to appeal on the papers described the appeal as “clearly arguable” and “raising a matter of some importance”. In contrast, Dr Mark Porter BMA Chair has described the appeal in the following terms without having access to the legal papers.
“The case currently being appealed remains lacking in merit and in a wider political sense is no longer relevant”
The BMA Junior Doctors Committee and BMA Council have not openly challenged Dr Porter on these words that run at odds to a Lord Justice’s assessment of our appeal papers.
We have had resistance from some surprising places with litigation that only seeks to ensure that junior doctors and patients are protected by statutory whistleblowing law. We are very grateful to those that have supported the case. The Court of Appeal hearing is open to the public.