Happy (Dr) Day

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Happy (Dr) Day

Happy (Dr) Day

The Court of Appeal has confirmed, in the recent decision of Day v Health Education England and Others, that a worker may have two employers for the purposes of whistleblowing protection.

Dr Day was a junior doctor working as a Specialist Registrar, he applied to a Local Education and Training Board (the predecessor of Health Education England (HHE)) for training in emergency medicine and commenced a training contract with HHE at Lewisham NHS Trust. During his training contract, Dr Day made a series of complaints (both to HHE and Lewisham NHS Trust) about patient safety given the serious understaffing at the hospital. Dr Day considered that he suffered detrimental treatment from HHE and Lewisham NHS Trust as a result of his complaints and so he brought a tribunal claim against both HHE and Lewisham NHS Trust.

Sections 43A to 43L of the Employment Rights Act 1996 (ERA 1996) protect workers from being subjected to a detriment at work following a protected disclosure. The general definition of a worker is found in section 230(3) ERA 1996 and includes “an individual who has entered into or works under a contract of employment or any other contract whereby the individual undertakes to do or perform personally and work or services for the other party to the contract”. In relation to whistleblowing proceedings, the definition of worker is extended in section 43K ERA 1996 to include those who fall outside the section 230(3) ERA 1996 definition but who satisfy a two limb test of:

  1. working for a person in circumstances in which they were introduced or supplied to that work by a third person; and
  2. the terms on which they were engaged to do the work were in practice substantially determined by the person for whom they work or a third person (or both).

HHE argued that Dr Day was not a worker under either definition. Dr Day argued that HHE acted like an employment agency as it supplied junior doctors to Lewisham NHS Trust and so he argued he was caught under the extended definition.

The Tribunal (and later the Employment Appeal Tribunal) struck out Dr Day’s claim stating that Dr Day did not meet limb two of the section 43K ERA 1996 definition as HHE did not substantially determine the terms on which Dr Day worked. Dr Day appealed the decision arguing that focusing on which body (either Lewisham NHS Trust or HHE) determined his terms of work failed to address the fact that in reality they both did.

The Court of Appeal upheld Dr Day’s appeal and the case was remitted to the Tribunal. A different Tribunal will be asked to decide whether HHE substantially determined the terms of Dr Day’s work and therefore whether he could fall within the extended definition of a worker and thus receive whistleblowing protection.

The case is interesting as the Court of Appeal concluded that the Tribunal applied the wrong test in determining which body substantially determined Dr Day’s work and in doing so failed to recognise the possibility that it could have been two employers for the purposes of whisteleblowing protection. The Court of Appeal also concluded that the Tribunal had incorrectly concluded that Dr Day could not fall within the extended definition of a worker in relation to HHE as he was an employee of Lewisham NHS Trust. The Court of Appeal recognised that this construction of the legislation could not be what Parliament intended and instead the sections should be read to offer the person carrying out the work the maximum protection.

For more information contact our employment team on 0345 070 6000.