This is due to proposed new government rules that would mean whistleblowers in the NHS are protected against discrimination if they apply to work for the health service again.

The BBC reports government plans would give applicants a right to complain to an employment tribunal if they believed they had suffered discrimination.

Secretary of State for Health Jeremy Hunt said he wanted to create "a culture of openness" in which staff feel they can speak up about patient safety.

Commenting on the proposals, Alison Treliving, employment partner at law firm Squire Patton Boggs, told Recruiter in a statement that under the draft regulations discrimination cases could be brought against agents acting on behalf of NHS clients, which could include recruiters looking to place candidates with NHS bodies, Treliving said.

“Recruiters will therefore need to ensure that its consultants are aware of this legislation, if enacted, in order to be able to guide its NHS clients in this area. It would also be advisable to ensure that consultants are in the practice of recording clear reasons for the rejection of a candidate – which are not linked to any actual or perceived whistleblowing – to assist the NHS with any actual or threatened litigation.”

Christopher Tutton, partner at law firm Constantine Law, agrees. He told Recruiter: “The agency needs to treat that candidate in exactly the same way as any other candidate for the role. They should take particular care that neither they nor the NHS Trust reject the candidate because they previously blew the whistle. 

“There should be a good paper trail for any recruitment decisions that are made, and care should be taken to ensure that decisions are fact-based and lawful (taking advice where appropriate). Good records of recruitment decisions will be of great importance in resisting a claim from a whistleblower.”

But Dr Sybille Steiner, partner solicitor at law firm Irwin Mitchell, warns the devil will be in the detail and the effect on recruiters cannot be fully analysed until the final version of the regulations is published after the consultation on the proposed rules ends in eight weeks’ time.

However, Steiner told Recruiter it is likely that agencies will have to make sure that, when dealing with NHS recruitment, the regulations are adhered to.

“Currently, the legal protections around whistleblowing apply when a worker suffers detriment or is unfairly dismissed after making a ‘protected disclosure’.

“Following the recommendations of Sir Robert Francis QC, the draft regulations are intended to prohibit NHS employers from discriminating against an applicant in a recruitment process by reason of that applicant’s previous ‘protected disclosure’.

“The draft regulations provide applicants with a right of complaint to the Employment Tribunal when such discrimination has occurred. The time limit for an applicant to bring a complaint to the tribunal is three months from the date of the discriminatory act. The available remedies include compensation and an order that the NHS employer takes steps to reduce the adverse effects of the discrimination.”

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