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Whistleblowing: Who is 'Protected'?

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 Thanks to Ed McFarlane of Deminos HR for preparing this case summary

If a junior doctor makes a disclosure to an organisation that arranges his placements at the hospital which employs him, is that a 'protected disclosure' under whistleblowing law?

No, held the EAT in Day v (1) Lewisham and Greenwich NHS Trust and (2) Health Education England.

The Claimant was a junior doctor in training employed by the Trust at Lewisham hospital. The Claimant's training placements were arranged by Health Education England (HEE), which also paid the Trust part of his salary. The Claimant made various disclosures to the Trust regarding patient safety, and repeated them to HEE, which he claimed led to him suffering detriments.

The Claimant then brought employment tribunal proceedings against the Trust and HEE. An employment tribunal struck out his detriment claim against HEE, as their relationship did not come within the extended definition of 'worker' under S43K ERA 1996 (e.g. agency or contract workers).

The EAT rejected the Claimant's argument that Article 10 of the European Convention of Human Rights (freedom of expression) required that whistleblowing legislation be interpreted purposively to apply to his relationship with HEE. Whilst a purposive approach to whistleblowing is appropriate, the circumstances in which legal protection applies are set out in statute, and there was no need here for additional protection. The lack of protection for disclosures made to third-party bodies such as HEE was not a 'lacuna' in the law, more that the Doctor's relationship with HEE was well outside the category of workers and relationships protected by it.