Better protection for whistleblowers?
Appeal upheld in Dr Day -v- Health Education England
Published: 05 May 2017
The highly anticipated Court of Appeal Judgment in Dr Day -v- Health Education England
has today been handed down.
The judgment has upheld an appeal by Dr Chris Day (a junior doctor who was employed by an NHS Trust) regarding the decision that he could not bring a whistleblowing claim against his national training body, Health Education England (“HEE”).
The judgment has helped to clarify the positon for junior doctors across the country (there are approximately 54,000 junior doctors in England) and workers who are supplied to work for other organisations, who blow the whistle.
Prior to joining Curzon Green Solicitors our Lauren McLaughlin was part of the legal team representing the Appellant, Dr Day.
In January 2014, Dr Day blew the whistle to Lewisham and Greenwich NHS Trust, his employer at the time, regarding patient safety concerns. He made disclosures about the Intensive Care Unit at Queen Elizabeth Hospital being understaffed. He repeated his disclosures to HEE, the training body with whom he had entered into a training agreement.
After blowing the whistle, Dr Day alleges that he was unfairly dismissed by the Trust and that HEE subjected him to detriments, refusing to place him at a new NHS Trust unless he accepted certain conditions. HEE then removed Dr Day’s National Training Number which is essentially the trainee doctor’s passport allowing him or her to complete the training programme and become a consultant doctor. Dr Day claims that he lost his career path to consultancy.
Dr Day brought whistleblowing claims in the Employment Tribunal against both the Trust and HEE.
“Workers” are protected by law from unfair treatment. The law extends the definition of “worker” to cover those who are supplied by one organisation to work for another.
At a Preliminary Hearing in 2015, it was decided that Dr Day was not HEE’s worker and as such, he did not have whistleblowing rights as against HEE. The Tribunal found that HEE did not substantially determine the terms under which Dr Day worked. This was despite that HEE places junior doctors at particular trusts and contributes to their salaries, among other things.
Court of Appeal decision
The first issue for the Court of Appeal was whether Dr Day can be a worker of HEE, even though he had an employment contract with the Trust. The Court of Appeal decided he could, overturning the EAT’s decision. This has helpfully clarified the position for agency workers and other workers in triangular relationships.
The second issue is whether HEE “substantially determined” the junior doctor’s terms. The Court of Appeal upheld Dr Day’s appeal on this point and remitted it back to the Tribunal to decide. The Tribunal’s decision could prove to be a landmark victory for junior doctors who blow the whistle to their training bodies. We will therefore be following the case, and the Tribunal’s decision, closely.
If you have been dismissed, suspended or treated unfairly after having blown the whistle or if you wish to discuss how to implement effective and fair whistleblowing policies and investigations at your organisation, please get in touch with our Employment Team.
The full judgment can be found here: www.bailii.org/ew/cases/EWCA/Civ/2017/329.html