Day v Lewisham & Greenwich NHS Trust & Health Education England (2017)
The Court of Appeal has decided that Health Education England may yet be liable for whistleblowing claims brought by junior doctors, in the high profile case of Day v Lewisham & Greenwich NHS Trust & Health Education England (2017).
Dr Chris Day entered into a training contract with the London Deanery, later part of Health Education England (HEE). He worked under a contract of employment with a series of NHS trusts, as part of his training, including Lewisham & Greenwich. He then raised a number of concerns about safe staffing levels, and alleged that he had been subjected to various detriments by HEE as a result.
The Employment Tribunal and Employment Appeal Tribunal
HEE asserted that Dr Day did not fall within the whistleblowing protection because he was not a worker, under the extended definition that applies.
Dr Day would fall within the wider definition if he had been introduced or supplied to an employer and the terms on which he was engaged were in practice substantially determined not by him but by the introducer or supplier. The purpose of this rule is to extend protection to certain kinds of agency workers. This was dealt with as a preliminary issue, and the Employment Tribunal decided that he did not fall within the category of workers for protection and his claim was struck out.
Dr Day’s appeal to the Employment Appeal Tribunal was unsuccessful. He appealed to the Court of Appeal.
The Court of Appeal’s Decision
The Court of Appeal upheld Dr Day’s appeal in part, and remitted it to the Employment Tribunal to be reconsidered.
Firstly, whilst it had been thought that Dr Day could not fall within the extended definition if he was already a worker for the Trust, the Court of Appeal held this was not the case. The two were not mutually exclusive. He may have been a worker for the Trust (and he almost certainly was), this did not prevent him from being a worker for the HEE. The Court of Appeal considered the case of McTigue v University Hospital Bristol NHS Trust (2016) which dealt with an agency worker. An agency worker could have a second job. They would not lose protection because they were already a worker for someone else.
Secondly, the Court of Appeal held that both the introducer and the client (or end-user) could both be the employer if together they determined the worker’s terms of engagement. In Dr Day’s case, the terms of engagement were determined by negotiating bodies on which the HEE had no representation. However, the Employment Tribunal had focussed on which body, the NHS trust or HEE, had more of an influence on the terms. The Court of Appeal held that this was the wrong test, so the appeal succeeded.
As the tribunal had not heard evidence on the rest of the case, it was remitted back to a fresh tribunal to consider, as a preliminary issue, whether the HEE substantially determined the terms of engagement.
Given the Court of Appeal’s decision, this is not the end of the proceedings. Dr Day may yet be unsuccessful. However, it emphasises the point that the courts and tribunals will consider the purpose of the legislation, and as the purpose is to protect those who blow the whistle, the tendency is to widen the scope of protection where possible rather than reduce it. Like McTigue, this case will therefore have a wider impact on multiparty arrangements for agency workers, and secondments, for example.
Dr Day has benefitted from a high profile campaign of support, including a network of supporters donating towards his legal costs, who have been critical about the BMA’s role in the matter. It is unlikely to be the last word on this case.