The Curious Case of Dr Chris Day & the BMA

Chris Day, and – to our profession’s shame – his family, are still fighting for Whistleblowing Protection for all of us. He is taking Health Education England (HEE) to an Employment Tribunal.

He needs your support, now more than ever.
Perhaps what you haven’t considered though, is that you need his.

You need his support if you want protection to make disclosures about patient safety – a duty, as doctors, we all share. We are all just one Datix away from being Chris Day. For we are not protected from HEE.

But we can be.

Indeed, the BMA has set the course that will make it so.

However, our union’s weak keel broke on the first wave. The BMA abandoned him, withdrawing the legal team who had devised his strategy. Chris, failed by our union and its lawyers, sunk.

He lost his Employment Appeals Tribunal hearing. HEE argued successfully that an employee cannot have two employers.

Despite that, in a characteristically undeterred fashion, Chris Day has continued, and he appealed EAT judgememt.

The BMA, however – to my eternal shame as a representative – have not only rebuffed his pleas for help, but have undermined him, privately and publicly.

Some of your junior doctor representatives inside the BMA – appalled – demanded an explanation as to why the BMA was failing in its support. The answer, as I recall in a JDC meeting was that his case lacked merit, and was now politically irrelevant; at the height of the junior doctor’s contract dispute the BMA betrayed Chris, by drawing up a hasty agreement to provide a mechanism by which doctors could take HEE to court over detriment secondary to whistleblowing.

Three embarrassing problems for the BMA with all of that.

First, as to his case “lacking merit” his appeal was accepted; the verdict of the Judge making the decision was that his case was “clearly arguable”.

Secondly, as to the deal with HEE to offer “protection” to us from them, a leading QC, James Laddie, wholly discredited the proposed contractual protection as “illusory”.

The final nail in the coffin of the BMA’s position was the Appeal itself. So pivotal was his case to general workers that Public Concern at Work, a charitable legal organisation that support workers against unscrupulous employers, joined his case to defeat HEE. Together, his legal team and theirs, succeeded. HEE’s arguments were thrown out of the Court of Appeal.

This was a monumental victory for Chris Day, for all junior doctors, and indeed all agency workers. The outcome was lauded by charities, news and magazine publications, legal reviews, and – of course – by trade unions, including HCSA.

It was also a humiliating defeat for Jeremy Hunt, the government, HEE, NHS Employers…and bafflingly, the BMA – the one voice absent that you’d expect from that chorus of congratulations.

The silence from our union was deafening. Many called upon it for comment, even to re-examine the merits of his case. The only answer was a false one. “We cannot comment on an ongoing legal case”. Of course the specific case in question was closed. Everyone in the land was free to comment on it – and they were, except the BMA.

The fault lines in the BMA leadership are clear. It is the establishment vs. the trade unionists. And the establishment, to all our ruin, have the advantage. This is demonstrated by the bizarre actions on Chris’ case – it is exactly the sort of massive historic national fight for the rights of doctors they should have led on. Instead they undermined it! This could have been their victory, as well as Chris’ and ours.

If you want more evidence of this toxic battle for the soul of the BMA, you only need examine the recent furore about a vote of support for Chris Day in BMA Council. An original motion called for legal support for him, and this was watered down over a fractious hour to a vague motion of mere support. Even that was too much for several of our representatives on Council to stomach and vote for.

Read the latest on the Council vote furore, and the battle for Chris inside the BMA here: http://www.54000doctors.org/blogs/unanimous-dr-c-day.html

Thus, Chris Day remains on his own. He still has two waves to sail over. First, the Employment Tribunal will determine whether HEE have an employment relationship with junior doctors (anyone here think they don’t?). If successful, he can finally test his original case at the Employment Tribunal against HEE. Significantly, so will any other junior doctor from that point forward.

There are many good people in the BMA, and over the next year we will be fighting to overturn the establishment’s position, and get Chris Day some actual legal support. Even if successful, that won’t be forthcoming for some time.

In mysterious circumstances, he has been kicked off Facebook, which is one of his main routes for fundraising.

I know many of you have donated before, even multiple times! But this is a serious fight to get our patients the protection they deserve, by giving their doctors – us – the protection to raise the alarm when they are not safe. I know Chris and his family will be grateful of any donation, no matter how small. Even if you are unable to donate, please share this call widely. Let’s help Chris finish the job. Let’s make 54000 doctors whistle-blowers!

Read the latest on the Council vote furore here: http://www.54000doctors.org/blogs/unanimous-dr-c-day.html

Donate to the cause here: https://www.crowdjustice.com/case/junior-doctors-round-3