Out-Law News 1 min. read

Junior doctor wins court backing for whistleblowing status

The Court of Appeal has upheld a junior doctor's argument that he should have been protected by whistleblowing legislation after raising concerns over staffing levels.

Dr Chris Day brought a claim against Health Education England (HEE) and the Lewisham & Greenwich NHS Trust, alleging he had suffered detrimental treatment after raising concerns about patient safety at the Queen Elizabeth Hospital. Day had applied to HEE’s predecessor body to train in emergency medicine and had entered into a training contract with it. HEE placed him in a training post with an NHS Trust, which became his employer.

HEE, , said the employment tribunal had no jurisdiction to hear Day's claims, arguing that he could not be considered a “worker” of HEE under the Employment Rights Act 1996 as he was an employee of the NHS Trust.

The employment tribunal agreed with HEE and struck the claims out. Day's appeal to the Employment Appeals Tribunal also failed.

But the Court of Appeal disagreed with the previous rulings. It said Day “could, in principle” be employed both by HEE as the third-party “introducer” of work and the trust as his employer, and that legislation should protect workers against victimisation from an agency or introducer.

Judges added that courts should read words into the relevant legislation in order to “maximise the protection” for employees while remaining true to the statute's language. 

The appeal court said the case should be returned to the employment tribunal, which will decide as a preliminary issue “whether HEE substantially determined the terms of engagement of Dr Day”, such as to make it his employer under s43K of the Employment Rights Act 1996 for the purpose of whistleblowing protection. The section covers a person who ‘works or worked for a person in circumstances in which (i) he is or was introduced or supplied to do that work by a third person, and (ii) 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’

Day raised £140,000 in crowdfunding for the appeal, which he said was crucial to protect junior doctors under whistleblowing law.

Legal protection for whistleblowers was introduced in the UK in 1999 as an amendment to the Employment Rights Act. The act covers employees who make disclosures of certain types of information, including evidence of illegal activity, from retribution from their employers such as dismissal or being passed over for promotion. In addition, where an employee is dismissed for making a protected disclosure, this dismissal is automatically unfair.

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