The Times Law Report on 26th June: More than one employer can be liable to ‘whistleblower’
The trouble is that GPs are self employed and have no whistleblowing liable employer. However, GPs are more and more “portfolio” a career doctors with some time as partner or salaried partner, some time as educator, some time as referral centre letter reader, sometimes as Out Of Hours doctor or A&E assistant.
Court of Appeal
Published: June 26, 2017
Day v Lewisham and Greenwich NHS Trust and Another
Before Lady Justice Gloster, Lord Justice Elias and Mr Justice Moylan
 EWCA Civ 329
Judgment: May 7, 2017
For the purposes of the protection for “whistleblowers” in the workplace, a person in training might be employed by both the employer with whom he had been placed and the training body that had made the placement, if the training body had substantially determined the terms under which he worked.
The Court of Appeal so stated when allowing the appeal of the claimant, Dr C Day, against the dismissal by the Employment Appeal Tribunal (Mr Justice Langstaff) ( ICR 878) of his appeal against a decision by an employment tribunal to strike out his claim against the second defendant, Health Education England, that it had subjected him to a detriment for making a protected disclosure or “whistleblowing”. The first defendant was Lewisham and Greenwich NHS Trust. Public Concern at Work intervened in the proceedings.
Part IVA of the Employment Rights Act 1996 (as inserted by section 1 of the Public Interest Disclosure Act 1998) provides, so far as relevant:
“43K(1) For the purposes of this Part ‘worker’ includes an individual who is not a worker as defined by section 230(3) but who (a) 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 . . . and any reference to a worker’s contract, to employment or to a worker being employed shall be construed accordingly.
“(2)(a) For the purposes of this Part ‘employer’ includes (a) in relation to a worker falling within paragraph (a) of subsection (1), the person who substantially determines or determined the terms on which he is or was engaged . . .”
Mr James Laddie, QC and Mr Christopher Milsom for the claimant; Mr David Reade, QC and Mr Nicholas Siddall for the second defendant; Mr Thomas Linden, QC, for the intervener.
Lord Justice Elias said that Part IVA of the 1996 act, read together with sections 47B and 103A (as inserted by sections 2 and 5 of the 1998 act), protected workers who disclosed information about certain alleged wrongdoing to their employers (colloquially known as “whistleblowers”) from being subjected to victimisation or dismissal as a consequence.
The appeal concerned the proper construction of section 43K and the application of that section to a certain category of doctors operating in the health service.
The claimant was a doctor who wanted to specialise and was accepted by the body then responsible for training doctors in London to take up a post from August 2011. He entered into a training contract that the parties agreed was not a contract of employment. He was allocated to the first defendant NHS Trust. Subsequently, the training body was taken over by a training board that was part of the second defendant, Health Education England.
Trainee doctors were allocated for relatively short fixed periods to NHS trusts. They entered into contracts of employment with each trust. The claimant worked, inter alia, at the Queen Elizabeth Hospital. While there, he raised a number of concerns with both the trust and with the South London Health Education Board about what he considered to be serious staffing problems affecting the safety of patients.
He alleged that those were protected disclosures within the meaning of the legislation on whistleblowers and he asserted that he was subject to various significant detriments by the second defendant as a consequence. He took proceedings before the employment tribunal against both the trust and the second defendant, as the body responsible for the actions of the South London Board.
The second defendant denied any wrongdoing, but took a preliminary point. To bring a whistleblowing claim the claimant had to fall within the statutory definition of worker and the defendant had to be his employer. The second defendant contended that that was not the position and, accordingly, that even if the facts alleged by the claimant were true, the second defendant could not be liable in law for any acts causing him detriment.
The only question was whether the claimant was a worker within the extended definition in section 43K and the second defendant was his employer as defined in that section.
His Lordship would refer to the person for whom the individual worked as the end-user and the party introducing or supplying that worker as the introducer. It was envisaged in section 43K(1)(a)(ii) that the terms on which an individual worked might be substantially determined by both the end-user (the heath trust) and the introducer (the training body). That might be either because the introducer and the end-user determined the terms jointly, or because each determined different terms but each to a substantial extent.
The extended definition of “employer” in section 43K(2)(a) was not limited to the person who played the greater role in determining the terms of engagement. Since both introducer and end-user could in principle substantially determine the terms of engagement for the purposes of the definition of worker, there was no basis for concluding that they could not do so when it came to applying the extended definition of employer.
That would in some cases have the effect that both introducer and end- user were employers and each would then be subject to the whistleblowing provisions. Indeed, that would seem to be an inevitable conclusion if the terms were determined by the end-user and introducer acting jointly. If only one party could be the employer, it was difficult to see by what principle it would be possible to determine who that should be.
The Employment Appeal Tribunal had been wrong to find that the fact that the health trust was a section 230(3) employer precluded the training body from also having that status.
There had to be some limitation on the words of section 43K, which began by providing: “For the purposes of this Part ‘worker’ includes an individual who is not a worker as defined by section 230(3) . . .” The insertion of some such phrase as “as against a given defendant” after “includes an individual who” would allow the section to operate against one of those parties even if there was a section 230(3) relationship with the other.
Accordingly the training body could in principle fall within the scope of section 43K(2)(a), notwithstanding that the claimant had a contract with the hospital trust.
The employment tribunal had not engaged directly with the question whether the training body itself “substantially determined” the terms on which the claimant was engaged. A tribunal should not limit itself to focusing solely on the contractual terms, although no doubt the terms would be overwhelmingly contractual. The section required the tribunal to focus on what happened in practice.
When determining who substantially determined the terms of engagement, a tribunal should make the assessment on a relatively broad brush basis having regard to all the factors bearing upon the terms on which the worker was engaged to do the work.
The case would be remitted to a fresh tribunal for determination of the preliminary issue whether the training body substantially determined the terms of engagement of the claimant.
Lady Justice Gloster and Mr Justice Moylan agreed.
Solicitors: Tim Johnson Law; Hill Dickinson, Manchester; Solicitor, Public Concern at Work.
Whistleblowing in the NHS – how safe are you? (Sharmila Chowdhury 4 August 2014)