Download the full outcome
Detail of outcome
The government has published its response to the consultation on the draft Employment Rights Act 1996 (NHS Recruitment – Protected Disclosure) Regulations 2018. While the consultation did not highlight the need for changes, the government has made some changes to its proposals to improve and strengthen the draft regulations. These are set out in the response document.
The draft regulations prohibit defined NHS employers from discriminating against job applicants because it appears to the employer that the applicant has previously made disclosures of information (‘whistleblowing’) within the meaning of the Employment Rights Act 1996.
An employer discriminates against an applicant if the employer refuses the applicant’s job application or otherwise treats the applicant less favourably than other applicants. The draft regulations give applicants who face discrimination legal protection, with NHS employers facing tough penalties if applicants’ complaints are upheld.
The whistleblowing review, Freedom to Speak Up made recommendations for building an open and honest reporting culture in the NHS. This included recommended protections from discrimination for people seeking NHS employment on the basis that they were perceived to have ‘blown the whistle.’
In response, the government amended the Employment Rights Act 1996 to enable regulations to protect those seeking recruitment with certain NHS bodies.
The proposed regulations aim to:
- make it clear that discrimination against whistleblowers seeking jobs or posts with certain NHS employers is prohibited
- make it clear that the individual applicants have a legal recourse should they feel they have been discriminated against, with appropriate remedies should their complaint be upheld
- help embed in NHS bodies a culture that supports workers to raise concerns and welcomes new workers who have done so in the past