Cole Khan Solicitors Represent Dr Claire Connolly in her ‘Agency Status’ whistleblowing claim against Health Education England

Cole Khan Solicitors are instructed by Dr Claire Connolly in her high profile Employment Tribunal claims of whistle-blowing detriment against Health Education England.  The case concluded on 26th April 2022 with the Judgement reserved.

 This is set to be a landmark case on the issue of agency status for whistleblowing claims in the context of junior doctors training for a specialism under the guidance of Educational Supervisors and the banner of Health Education England (“HEE”), the body responsible for postgraduate medical training in England.

 Dr Connolly was a Paediatric Registrar ST8 near completion of training in London to be a General Paediatrician, working under HEE in an NHS Accident and Emergency department. She raised concerns and ‘blew the whistle’ about patient safety with her Educational Supervisors.  As a result, she alleged suffering adverse consequences from Educational Supervisors and the Head of School in Paediatrics, including being removed from the nightshift and accused of being ‘over cautious’ with patients.  Her training was then terminated before she gained her Certification of Completion of Training in Paediatrics.

Dr Connolly has secured Crowd Founding and Cole Khan solicitors have been instructed, in conjunction with support from the British Medical Association to represent Dr Connolly on the issue of the existence of an agency relationship between Health Education England and Educational Supervisors. If proven, this will render them liable for the acts of the person carrying out the alleged whistleblowing detriments under s47B(1A)(b) Employment Rights Act 1996.

 It is contended that the agency status of the Educational Supervisors is mixed question of fact and law.   By virtue of the Learning and Development Agreement (“LDA”) that HEE has with local education providers, the Trust provided services on behalf of the HEE in order to enable it to fulfil its overall responsibilities for training. These services included the provision of educational supervisors, for which HEE provided necessary funding. The Trust was obliged at all times to comply with the LDA and to operate under the instruction of HEE. As such, it is considered that a fiduciary relationship exists between a principal and an agent, an ‘agency relationship’. Dr Connolly argues that her supervisors were agents of HEE, which is in turn renders it liable for any whistleblowing detriment under s47B ERA 1996.

 There are strong policy reasons for finding an agency relationship between Educational Supervisors and HEE.  An Educational Supervisor may not be in the same local education provider as the trainee, which would leave them without recourse to the trainee to pursue their own employer in cases of detriment by an Educational Supervisor following a protected disclosure.  Given the influence that an Educational Supervisor has on the career of a trainee doctor, it must be intended by the legislation that this situation should be covered so that trainee doctors are not left without legal recourse when subjected to whistleblowing detriment.

 The issues in this case has wider significance for whistle-blowers, and the reserved judgement is keenly awaited.