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In the judgment of the EAT in Day-v-Health Education England & Ors [2016] UKEAT/0250/15/RN it has been held that doctors in training do not possess the requisite relationship to allow them to bring a whistleblowing claim against Health Education England (their training organiser)

Nicholas Siddall who successfully appeared on behalf of HEE analyses the judgment of Langstaff J and seeks to discuss its wider implications.

The Facts

The Claimant was a Specialist Registrar in Medical Training who worked under a contract of employment with Lewisham NHS Trust. He had, as is common, an overarching training relationship with Health Education England ("HEE”) which had placed him at Lewisham on a one year rotational placement. He made disclosures about patient safety, and repeated them to HEE who arranged his training placements, were responsible for paying a substantial part of his salary to Lewisham, and who regularly reviewed his progress as a doctor in training. He claimed to have been treated detrimentally by HEE as a result of his repeated disclosures to it. At a preliminary hearing HEE had succeeded in dismissing the Claimant’s claim against HEE as he was not in a worker relationship with it under s43K(1)(a) of the Employment Rights Act 1996 ("ERA”).

The wording of s43K(1)(a) ERA is as follows:

  • For the purposes of this Part "worker” includes an individual who is not a worker as defined by Section 230(3) but who
    • works or worked for a person in circumstances in which
      • he is or was introduced or supplied to do that work by a third person


  • 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…
  • For the purposes of this Part "employer” includes
    • in relation to a worker falling within paragraph (a) of sub-section (1) the person who substantially determines or determined the terms on which he is or was engaged

At the hearing HEE conceded that the Claimant was arguably supplied to Lewisham by it and that he arguably did not determine the terms on which he was engaged. However it was contended that the "substantial determiner” of his terms of work was Lewisham not HEE. On that point HEE succeeded and his claim was dismissed.

The Appeal

On appeal the Claimant argued that the effect of the decision was to create a lacuna in the law and leave 57,000 doctors without a remedy against their training organiser. It was asserted that a wide public interest here applied and that the meaning of "substantially determines” in s43K(2)(a) should be read in a way (consistent with the Claimants article 10 ECHR rights and/or a purposive construction so as to provide for whistleblowing protection where possible) to provide him with a remedy. It was also argued that the ET had made an incorrect distinction between work and training and had provided inadequate reasons.

The Judgment

Langstaff J rejected each of the Claimant’s arguments. He held as follows:

  • A proper distinction had been drawn between work and training. He accepted the training purpose of the Claimant’s contract with HEE and stated

"The point taken ignores the precise terms in which Section 43K(1)(d) is expressed – which is not that whistle-blowing protection covers all and any work experience and training, but a particular form of work experience, and in any event includes only such an experience provided otherwise than "under a contract of employment”.”

  • On the issue of inadequate reasons it was held that each and every point made by a party was not required to be dealt with in an judgment

"The answer to this submission was convincingly given by Mr Siddall, by drawing attention to the well-established principle that the requirement to tell a party why that party has lost does not require the Tribunal to set out each and every point which might have been disputed before it and say why it had determined that point as it did: see the comments of the Appeal Tribunal in Receptek v Pearce [9th October 2014] UKEAT/186/14 at paragraph 30.”

  • As to a purposive construction this did not permit the court to ignore the words that Parliament had used

"I also accept that this does not mean that a Court is entitled to ignore the words of the legislation by thinking that the purpose would better be served if they did not appear. Everyone might agree that discrimination is a social evil. It is proscribed by international instrument. That does not, however, have the consequence that the Equality Actmust be taken to apply to any situation in which it might be said that one person discriminates against another. The circumstances in which it may occur are carefully defined.”

  • The Article 10 point was also rejected

"It is well within the margin of appreciation to be accorded to a member state that it should enact careful and detailed provisions as the UK Parliament has done in enacting Part IV of the Employment Rights Act.”

General Guidance as to s43K(1) ERA

Those findings were sufficient to dispose of the appeal but Langstaff J also made some additional comments as to the proper scope of S43K ERA as follows:

  • There is no general principle which unites the various relationships defined in s43K

"36. I accept Mr Siddall’s description of Section 43K as providing a list of particular extensions of the meaning of worker. Broadly they may be seen as follows. By sub-section (1)(a) section 43K makes provision for agency workers, who though not employees nor workers in most cases would be placed in a similar position to those of employees or limb (b) workers in respect of the work they were engaged to do. Arden LJ saw it that way in Sharpe. Subsection 1(b) is concerned with contractors; (ba) - (cb) provide for diverse categories of persons involved with health service bodies, and (d) is concerned with a person who might be such as an intern, or possibly on a sandwich course, though both these suggestions are hesitant ones, or someone who could be described as an "atypical worker”. But the fact that these circumstances are defined by separate example, coupled with the nature of those examples, shows that there is no general principle which unites them, which might by extrapolation extend to someone in the position of the Claimant.”

  • S43K is not available to those who are in an employment/worker relationship with another entity already

"37.…Construed as Mr Siddall suggests, they apply a policy to the effect that those who are workers within Section 230(3) should adopt the route of complaint set out in Section 43C – 43H but have no, and need no, additional protection against those who are more peripheral to their employment. There is no reason in policy to include those who are tangential to the work which is relevant.”

  • The term "substantially determines” is comparative and asks who is the main determiner of the terms of work

"40. As to the word "substantially” the word (otherwise undefined) takes its colour from the context. The context of 43K(1)(a)(ii) asks the Tribunal to determine whether the Claimant on the one hand, or other parties, on the other, substantially determined the terms on which he is or was engaged to do the work – i.e., adopting the approach in Sharpe, the contract. In this context, "substantially” means "in large part”. Given that the choice is between (a) and (b), the question is in effect asking which determined those terms more than the other. This gives no room for a decision that it means "more than trivially”. It can be tested in this way. If it meant "more than trivially”, and the Claimant had been responsible for a small minority of the terms sufficient to satisfy the "more than trivial” approach, could it be said that the terms had been substantially determined by him, and not by the person for whom he works or by the third person, who was responsible for the balance of the terms? The answer is obviously not. The expression appears in a clause inviting a comparison.

  • However it is possible to have more than one "substantial determiner”

"41. I accept that the substantial determination may be by more than one person. The sense is most likely to be that the person for whom the Claimant works and the third person who has supplied his services are combining jointly: but it may be that they do not have to be. Nonetheless, to found liability the employer under 43K(2)(a) has substantially to have determined the contractual terms.”

Further Appeal

The Claimant has indicated an intention to seek permission to appeal and so Langstaff J’s decision may not be the last word on the matter. However until any successful appeal this decision shall be a key guide as to the proper operation of s43K when dealing with whistleblowing claims in the context of atypical working relationships.

Nicholas Siddall was instructed by Micheal Wright of Hill Dickinson LLP, Manchester on behalf of HEE.

A copy of the judgment can be found HERE

This case has been reported in The New Statesman 15th January 2016The New Statesman 24th February 2016, the Daily Mirror and Sunday Mirror, the Daily Mail, the Telegraph, and the Evening Standard

Posted: 09.03.2016 at 08:57
Tags:  Comments  Employment Law
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