A worker can have two employers for the purposes of whistleblowing protection
Thu 01 Jun 2017
There has been an abundance of case law recently relating to “worker status”. The main focus of these cases has been whether a particular individual falls within the definition of a “worker” under section 230(3) of the Employment Rights 1996 (ERA) or an “employee” under section 230(1). The case of Day v Health Education England and others  EWCA Civ 329, however, raised some different “worker” related questions, peculiar to whistleblowing protection. The questions considered in this case were a) whether the individual was a worker under section 230(3) ERA or a worker under the extended definition in section 43K ERA and b) whether it was possible for an individual to be both.
This Claimant was a junior doctor, Dr Day, who entered into a training contract with Health Education England (HEE), the statutory body responsible for organising the training programmes of junior doctors. As part of this training contract, Dr Day was placed in a number of different training posts within NHS Trusts.
Whilst Mr Day was working at the Queen Elizabeth Hospital, he raised a number of concerns with both the Trust and HEE about what he considered to be serious staff shortages which were affecting patient safety.
My Day later brought proceedings in the Employment Tribunal against the Trust and HEE claiming that he had been subjected to detriment as a direct consequence of raising these concerns, which he argued were “protected disclosures”.
It was common ground that that Dr Day was a worker of the NHS Trust and therefore was able to bring such a claim against the Trust, but there was a question over Dr Day’s status in relation to HEE.
HEE applied for the claim to be struck out on the basis that Mr Day was not its “worker” under section 230(3), or under the extended definition of “worker” under section 43K and therefore the Tribunal had no jurisdiction to hear the claim. It was acknowledged that Dr Day did not fall within the normal definition of worker (in respect of HEE), so the question was whether he fell within the extended definition. The Employment Tribunal concluded that Dr Day did not, as it was the Trust rather than HEE who had substantially determined his terms, meaning he did not fulfil the requirements for a worker under section 43K.
Dr Day unsuccessfully appealed this decision to the Employment Appeal Tribunal (EAT). The EAT not only agreed with the Employment Tribunal, but further held that because Dr Day was a worker of the Trust under section 230(3), he could not also be a worker of HEE under section 43K.
Dr Day appealed again to the Court of Appeal.
The Court of Appeal upheld Dr Day’s appeal and concluded that notwithstanding the literal wording of section 43K, Parliament’s intention was to maximise the protection for workers. Therefore, the correct interpretation of this clause was that a worker can have two different employers for the purposes of whistleblowing protection and that it is possible to fall within section 230(3) in relation to one employer and section 43K in relation to the other.
The Court of Appeal also held that the Employment Tribunal’s approach to determining whether or not HEE substantially determined the terms on which Dr Day was engaged was mistaken and it failed to appreciate that more than one employer could substantially determine an individual’s terms of engagement and therefore meet the second limb of section 43K.
The case has now been remitted to the Employment Tribunal to determine on the facts, whether HEE substantially determined Dr Day’s terms.
This decision has provided useful clarity on the interpretation of section 43K and the rights of whistle-blowers, particularly those in tri-partite relationships, such junior doctors and agency workers.