Junior doctor recognised as a worker for whistleblowing purposes

Published on: 18/05/2017

#Whistleblowers

Dr Day entered into a training contract with Health Education England (“HEE”). HEE placed Dr Day on a series of training placements with different NHS trusts. Dr Day lodged a complaint about serious understaffing at one of the hospitals he attended during training and claimed he had been subjected to various detriments by HEE as a result.

HEE denied any wrongdoing but believed the Tribunal had no jurisdiction to hear Dr Day’s whistleblowing claims as he did not fall within the statutory definition of a worker and HEE was not his employer. The Tribunal and EAT agreed and upheld this argument. Dr Day appealed to the Court of Appeal with the help of a crowd-funding appeal which raised over £140,000.

The Court of Appeal held: (i) HEE could fall within the scope of Dr Day’s employer despite him having a separate contract with the NHS Trust; and (ii) The Tribunal failed to consider whether both the NHS Trust and HEE could substantially determine Dr Day’s terms of engagement. The case was remitted to a fresh tribunal to consider whether HEE could also be Dr Day’s employer for whistleblowing purposes.

The Court of Appeal’s guidance is in line with the EAT’s decision in McTigue v University Hospital Bristol NHS Foundation Trust, which we blogged on last year.  It also provides a useful reminder that the reality of a relationship rather than contractual terms will, in most cases, determine employee status. For further information in this area, please contact our employment team.

Disclaimer

This information is for guidance purposes only and should not be regarded as a substitute for taking professional and legal advice. Please refer to the full General Notices on our website.