Can a junior doctor come within the extended definition of ‘worker’ for whistleblowing purposes, even if he already falls within the scope of the traditional definition of ‘worker’ because he is employed by an NHS Trust?
Yes, held the Court of Appeal in Day v Health Education England, even though the extended definition of worker at s. 43K(1)(a) ERA 1996 expressly provides that it only applies when s.230(3) ERA 1996 does not.
The Court of Appeal applied a purposive construction of Part IVA ERA 1996, and held that the phrase: 'as against a given Respondent' should be implied into s.43K(1) ERA 1996. Accordingly, a s.230(3) worker can also be a worker within the extended definition in relation to another employer, introducer or end-user.
The Court of Appeal held that the extended concept of employer at s.43K(2)(a) ERA 1996 could apply to Health Education England (the national training body), as it was possible that both the NHS Trust employing the junior doctor and Health Education England could substantially determine the terms on which a junior doctor was engaged.
Finally, the Court of Appeal held that it was not appropriate for the issues of worker and employer status to have been effectively determined by an employment tribunal at a Preliminary Hearing listed to hear a strike out application made by Health Education England. The determination of both issues required the employment tribunal to make findings of fact, and indeed the employment tribunal at the strike out application had been shown some limited documentary and witness evidence. The appropriate procedure was a Preliminary Hearing listed to decide a preliminary issue, and both parties should have an opportunity to adduce evidence at that hearing.
The draft Employment Rights Act 1996 (NHS Recruitment – Protected Disclosure) Regulations 2017, which will be made pursuant to s.49B ERA 1996 and are currently subject to consultation, will expressly prohibit 'discrimination' by an 'NHS employer' - including Health Education England - because a job applicant has previously made a protected disclosure, or appears to the prospective employer to have done so.
Thanks to Claire Darwin of Matrix Chambers for preparing this case summary.