In Day v Health Education England, the Court of Appeal has overturned the EAT’s decision that a trainee doctor employed by an NHS Trust could not bring a whistleblowing claim against the national training body Health Education England (HEE). The case will now return to the tribunal for it to decide whether HEE ‘substantially determined’ the terms on which the doctor was engaged, such as to make it his employer under S.43K of the Employment Rights Act 1996 for the purpose of whistleblowing protection.
D was a junior doctor working as a specialist registrar. He had applied to HEE’s predecessor body to train in emergency medicine and had entered into a training contract with it. HEE placed him in a training post with an NHS Trust, which became his employer. While working for the Trust, D made a number of complaints, both to the Trust and to HEE, in which he alleged that serious understaffing was affecting patient safety. He subsequently brought an employment tribunal claim against the Trust and HEE, alleging that these complaints were ‘protected disclosures’ for the purpose of the whistleblowing provisions in Part IVA of the ERA, and that he had suffered detriment as a consequence.
The tribunal struck out the claim against HEE on the ground that D was not HEE’s worker, either under the general definition in S.230(3) or the extended definition in S.43K. As to the latter, the section covers a person who ‘works or worked for a person in circumstances in which (i) he is or was introduced or supplied to do that work by a third person, and (ii) the terms on which he is or was engaged to do the work are or were in practice substantially determined not by him but by the person for whom he works or worked, by the third person or by both of them’ – S.43K(1)(a). The tribunal rejected D’s argument that this made him a worker in relation to HEE. In its view, while it was arguable that HEE had introduced or supplied D to the Trust under limb (i) of the S.43K(1)(a) test, the conditions of limb (ii) were not met as HEE did not substantially determine D’s terms of engagement. Rather, the relationship between D and HEE was ‘a training relationship which subsisted alongside the employment relationships with the various Trusts who were [D’s] employers’.
D appealed unsuccessfully to the EAT. Mr Justice Langstaff ruled (Brief 1044) that there was no error of law in the tribunal’s decision that the Trust, not HEE, substantially set the terms under which D worked. He went on to hold that, even if he and the tribunal were wrong, and HEE did substantially determine these terms, S.43K would still not apply. Langstaff J pointed out that the opening words of S.43K state that it extends to ‘an individual who is not a worker as defined by S.230(3)’. He reasoned that D could not possibly fall within S.43K(1)(a) because he was a worker within the meaning of S.230(3), albeit that he was the Trust’s worker, not HEE’s. D appealed to the Court of Appeal.
The Court of Appeal allowed the appeal. Lord Justice Elias, giving the only judgment, held that the fact that the Trust was a S.230(3) employer of D did not prevent HEE also having that status. In Elias LJ’s view, it was plain that the words of the statute could not be taken literally, otherwise they would prevent an individual coming within S.43K if he or she was employed by anyone else, even in an unrelated second job. Accordingly, some words needed to be added to S.43K to limit the effect of this exclusion. Elias LJ concluded that S.43K should be read to cover someone who is not a S.230(3) worker ‘as against a given respondent’. Thus, if the individual was in a S.230(3) relationship with either the end-user or the person who introduced him or her to that end-user, that would not prevent him or her being a S.43K worker in relation to the other. Elias LJ took issue with Langstaff J’s suggestion that an individual should have no need of S.43K protection against the introducer if he or she has S.230(3) protection against the end-user – that is of no use if, as was alleged here, the victimisation comes from the introducer rather than the end-user. He went on to endorse the approach of Mrs Justice Simler, President of the EAT, in McTigue v University Hospital Bristol NHS Trust (Brief 1051), who held, contrary to Day, that S.43K protection is only excluded where the claimant is a S.230(3) worker in relation to the particular respondent.
Elias LJ went on to hold that the employment tribunal also erred in its consideration of whether HEE ‘substantially determined’ the terms on which D was employed. The tribunal incorrectly asked who, as between HEE and the Trust, played the greater role in determining the terms on which D was engaged. It did not envisage the possibility that both could substantially determine the terms of engagement. This matter would be remitted for the tribunal to decide as a preliminary issue.
Link to transcript: http://www.bailii.org/ew/cases/EWCA/Civ/2017/329.html
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