And with employees now starting to make their return to the workplace whilst restrictions remain in place, it is a trend which is not only set to continue, but likely to escalate.

A protected disclosure is any disclosure of information which, in the reasonable belief of the worker making a disclosure, is made in the public interest and tends to show one or more ‘relevant failures’.¹

It falls within the Public Interest Disclosure Act 1998, whereby employees are fully within their rights to raise such concerns, particularly if they are concerned about their safety or safety of others.  

Indeed, it was created to encourage employees to highlight issues or a wrongdoing in the workplace without fear of being dismissed by their employers as a consequence, even if they have been employed less than two years.

Under the terms of the law, employees can claim unfair dismissal, irrespective of their length of employment, if they are made redundant or victimised following ‘blowing the whistle’ on serious issues within the workplace.  However, if employees are to receive the legal protection they are entitled to, it is important they understand what qualifies as a protected disclosure according to leading Coventry & Warwickshire solicitors Brindley Twist Tafft & James.

Currently common complaints are over whether a workplace is Covid safe and furlough fraud all of which are perfectly valid reasons however, as Kerry Hudson, Head of Employment at Brindley Twist Tafft & James points out, employees need to be fully aware of the process of ‘blowing the whistle’ before doing so to ensure they are protected.

Kerry Hudson explained: “There is a lot of confusion about what constitutes a protected disclosure.   It cannot simply be a passing comment and we have seen a number of cases where employees have thought they have made a protected disclosure and sought the benefit of that, only to find in fact it does not meet the requirements. 

“It is a situation which is happening all too often where employees who may not have acquired the minimum two years’ service bring a claim for unfair dismissal on the basis they have been dismissed for having made a protected disclosure (where you don’t have to have the two years) only to later realise that the disclosure did not qualify.

Conversely, employers dismissing an employee with less than two years in the belief they will not be able to bring a claim and not realising that if the dismissal was directly related to having made a qualified protected disclosure, in fact can.”

However, this begs the question what constitutes a protected disclosure. Essentially it is a passing on of information where the employee believes that the information disclosed shows a relevant failure or malpractice i.e. breach of a legal obligation such as danger to the health and safety of an individual and that any disclosure was made in the public interest.

Further, disclosures should only be made if the wrongdoing in the workplace is tangible.

Kerry Hudson continued: “Whilst every case will be judged on its individual merits, the general rule is that an employee must raise their concerns in writing (preferred) or verbally to their employer or another person of authority.  Complaining to fellow colleagues, customers or the press is extremely unlikely to provide an employee with the protection under the legislation. 

“Any employee is entitled to make a valid observation provided it has been done in the right way. Therefore, we urge employees to have a full understanding of their rights regarding protected disclosure, or seek professional advice, especially if they feel they have been made redundant or mistreated after highlighting an issue or wrongdoing in the workplace.”

BTTJ provides the best possible service to clients. It recently reinforced its position as one of the West Midlands’ leading law firms through the acquisition of well-known MacNamara King Solicitors with offices in Warwick, Balsall Common and Southam as well as Coventry.

1. Relevant Failures include: –

• A breach of any legal obligation (including regulatory obligations)
• A criminal offence
• Miscarriages of justice
• Danger to health and safety
• Damage to the environment
• Deliberate concealing of the above

Contact us for advice today

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Constructive dismissal is where you have not been directly dismissed but where your contract of employment has been fundamentally breached by your employer and as a result, you resign.

Some key points to remember are:

• You will need to have two years of continuous employment to bring a claim, although there are some limited exceptions to this rule
• These types of claims are not straightforward as there are various matters you will need to establish to be successful in the claim
• It may be preferential to pursue a settlement agreement as an alternative to making a claim
• It is recommended that you take professional advice before resigning from your employment.

If you have any questions, or need help, please get in touch with me at Kerry.Hudson@bttj.com or 024 7653 1532.

Kerry Hudson is an employment solicitor at Brindley Twist Tafft & James in Coventry. She has specialises in Employment Law and is a trusted advisor to both employers and employees.

The post I feel I am being forced out of my job. Is it constructive dismissal? appeared first on Brindley Twist Tafft & James.

1. Their written contracts of employment, and;

2. The policies and procedures of the Trust by which they are employed, and;

3. The MHPS Framework.

Specialist Registrars may also have their Training Contract with a local Medical Deanery which also provides a further source of contractual terms. However the purpose of this article focuses purely on the relationship between a doctor and their employer.

MHPS

The Maintaining High Professional Standards (MHPS) Framework document is the document which contains the processes for dealing with medical practitioners within the NHS who are alleged to carry out an act of misconduct or where there are concerns over their fitness to practice.

It is deemed to be a contractual document and contain contractual terms. It follows that in order for an Employer to successfully discipline or dismiss a medical practitioner then it MUST follow the rules set out therein.

The document contains details as to who should be appointed to carry out the various stages of the process, what the functions and limits are to each role, what the Medical Professional’s rights are, and the manner in which any investigation and subsequent hearing should be conducted, sanctions that may be imposed and the aggravating and mitigating factors that may be considered.

The Limitation of Unfair Dismissal

Unlike in some employment where policies and procedures fall short of the protection of a contractual term, failure to follow the MHPS, or any part of it therefore, means a breach of contract.

In normal employment law cases such a breach is likely to give rise to a claim for breach of contract, wrongful dismissal and/or unfair dismissal, and therefore a claim for compensation.

However, for medical practitioners damages for such may be insufficient. The Recent case of Edwards confirmed that there is no general principle of damages in a breach of contract claim before the Courts which can extend beyond the value of the notice period. Further, even if successful in an Employment Tribunal, the Claimant’s award for unfair dismissal is capped at £74,200 or 12 months gross wages (whichever is the lower), or £25,000 for breach of contract. However, this may not be satisfactory for a medical professional as:

• such sums may genuinely not compensate for the loss that they have or will suffer; loss may extend beyond the capped sum, and in cases of misconduct may include the effective destruction of a career.
• The loss of NHS work may have an adverse knock-on effect to any private work carried out by the individual.
• The loss of their role or having sanctions imposed may also lead to repercussions from the professional’s regulatory body launching its own investigation and action.

It should also be noted that the “Range of Reasonable Responses” and “Burchell” tests before the Employment Tribunal may make it difficult for the Medical Professional to succeed in their claim.

The disparity between the sanctions and their possible remedies is likely to be one of the reasons for the MHPS’s elevation to the status of a contractual document.

Alternatives to Compensation Claims

In light of the aforementioned disparity, medical practitioners may seek alternative remedies to those normally associated with employment law claims. Whilst these may be potentially be open for all employees, the cost and outcome mean that they are not usually followed outside of professional circles.

The most potent weapon in the Medical Professional’s armoury is the injunction. This is the ability to apply to the Court to seek an order either to prohibit an Employer from taking certain actions, or on occasion to compel it to take an action. At the same time a claimant may also seek a declaration by the Court that there has been a breach of contract or that the Employer has acted Ultra Vires and beyond the realms of its normal powers.

However to be successful in any injunction application, a Claimant will have to show that:

a. unnecessary or prolonged delay by the Clamant in making the application

b. acquiescence to the treatment

c. inequitable conduct by the Claimant.

A further advantage to dealing with the matter in this way is that if the Claimant wins then the prospects of recovering their costs are greater. However, equally, if they lose there is a greater risk that a) they will be ordered to pay their employer’s costs, and b) if an interim injunction has been granted then there may be damages payable to the employer under any cross undertaking.

In the event that you are either:

a) an employer of medical professionals and are having problems with an employee, or;

b) you are a medical professional who is being subjected to disciplinary or capability proceedings and are concerned that the correct process is not being followed,

you are advised to take professional legal advice at your earliest possible convenience.

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