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Trainee Doctors and Whistleblowing

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

and

  • 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

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