Each month brings more changes to the world of employment. While some changes relate to case law, others follow on from regulatory and legislative changes. This article offers an insight into what the healthcare sector needs to be aware of.
Whistleblowing—what is the ‘public interest’ test?
Since 2013, whistleblower protection has only been available to workers who reasonably believe that their disclosure is in the public interest. Can allegations by a worker that they have been defamed ever satisfy this test? The answer is—it all depends on the facts, as was pointed out by the case of Ibrahim v HCA International Limited (HM Courts and Tribunals Service, 2019).
In this case, Mr Ibrahim complained to HCA (a healthcare business) that rumours were circulating that he was responsible for breaches of patient confidentiality. Mr Ibrahim said he needed to ‘clear his name’. HCA investigated his complaint but rejected it. When Mr Ibrahim was later dismissed, he lodged a whistleblowing claim.
For his claim to get off the ground, Mr Ibrahim needed to show that at the time he raised his complaint with HCA, he believed he was acting in the public interest, and his belief was reasonable.
HCA claimed that Mr Ibrahim's complaint could not be in the public interest, because his concerns were only that false rumours had been made about him and about the effect the rumours had on him personally.
Both the Employment Tribunal and the Employment Appeal Tribunal agreed with HCA. All the evidence supported the conclusion that Mr Ibrahim was seeking to protect his personal interest. As a result, his claim failed.
So, what can be learnt from this? To benefit from the special protection afforded to whistleblowers, workers must be able to show that at the time they made their disclosure, they believed it had a connection to the wider public interest. This makes it more difficult for whistleblowing claims to succeed where the alleged disclosure is a breach of the employee's own contract of employment or, as in the case of Mr Ibrahim, alleged defamatory comments by colleagues.
However, the facts of each case are all important. There will be cases where disclosures are both in the public interest and in the private interests of the employee concerned. For example, Mr Ibrahim later alleged that he was concerned about wider data protection issues and that this engaged the public interest. The problem in his case was that there was no evidence that he held this belief at the time that he raised his complaint with HCA.
NHS pension consultation
On 18 December 2018, the Department of Health and Social Care published a consultation on the proposed changes to the NHS pension scheme regulations (Department of Health and Social Care, 2018). While the consultation has now closed and a number of the changes are technical, it is nevertheless worthwhile to point out the proposed changes that may affect workers. In summary, they are as follows:
EU Settlement Scheme to open for more EU nationals
As Brexit gets closer, the EU Settlement Scheme, which grants immigration status to EU nationals to allow them to continue living here after Brexit, is being rolled out to increasingly larger groups of EU nationals.
Under the proposed Withdrawal Agreement, EU citizens and their family members who are resident in the UK will need to apply under the EU Settlement Scheme for immigration permission by 31 December 2020 to continue to live here after Brexit.
The Government is in the process of piloting the EU Settlement Scheme and before December 2018, the pilot was opened to a select group of EU nationals including those working in the higher education, health and social care sectors. From 21 January 2019, the pilot was expanded to a much larger group of EU citizens to enable them to apply for ‘settled’ or ‘pre-settled’ status under the EU Settlement Scheme.
In order to apply during this next test phase, applicants will need to either be EU nationals who hold passports that contain biometric chips or non-EU nationals who are family members of an EU national and have been issued a biometric residence card by the Home Office. The reason for this restriction is that those applying at this stage must use the EU Exit: ID Document Check app, which is used to verify the applicant's identity by reading the biometric data from their passport or biometric residence card (UK Visas and Immigration and Home Office, 2018). The app is currently only available on tablets and smartphones operating on the Android platform.
For those who do not hold biometric identity documents or have access to an Android device, the scheme is due to be open fully by 30 March 2019 when other arrangements will be in place for verifying identity. Under the Withdrawal Agreement, the scheme is scheduled to remain open until 30 June 2021.
For employers, particularly those who employ larger numbers of EU nationals, the widening of the pilot provides an opportunity to take a more proactive approach in supporting their employees. The NHS has about 63 000 staff working in England who are EU nationals (Baker, 2018). For many such individuals, there has been a long period of uncertainty while they wait to find out what their status will be after Brexit, leading to reports that many EU nationals are considering leaving the UK as a result.
While employers should be careful not to provide immigration advice to their employees (doing so may be a criminal offence), providing additional support to EU employees with applications under the EU Settlement Scheme may help reassure employees in these uncertain times.
Additional information about the EU Settlement Scheme for employers and employees who are EU citizens is available in the form of the Employer Toolkit produced by HM Government (2019). The toolkit contains guidance for employers, as well as information leaflets aimed at EU nationals who will be applying under the scheme.
Government proposes biggest reform of employment law in 20 years
In July 2017, Matthew Taylor published his Good Work report about the implications of new forms of work on worker rights and responsibilities and employer freedoms and obligations (Taylor, 2017). The Government has now published its response, the Good Work Plan, which proposes a number of changes to employment law, and draft legislation for some of the changes has already been released (HM Government, 2018).
On 6 April 2020, a number of employment law changes will be made as part of the Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018. These include: