Day v Lewisham & Greenwich NHS Trust

Protection against detriment for making a protected disclosure is confined to the relationships identified in Part IVA of the Employment Rights Act 1996. Section 43K provides specific extensions to the meaning of worker; it does not create a general protection for every person in an economically dependent or worker-like relationship.

The introductory words of section 43K(1) exclude individuals who are already workers under section 230(3). For agency workers, “substantially determined” means determined in large part, assessed comparatively. More than one person may contribute substantially, but the alleged employer must itself have substantially determined the terms on which the relevant work was performed.

The claimant was employed by Lewisham and Greenwich NHS Trust as a specialist registrar. Health Education England arranged his training placements, supervised his progress and contributed substantially to his remuneration. He alleged that HEE subjected him to detriment because he made protected disclosures concerning patient safety.

The Employment Tribunal struck out the claim against HEE under rule 37(3) of the Employment Tribunals Rules of Procedure, holding that the claimant had no reasonable prospect of showing that HEE was an employer within section 43K. The appeal concerned the interpretation of section 43K, the significance of the claimant’s training relationship, and whether a purposive or Convention-compatible interpretation required wider protection.

1. Appeal dismissed. The Employment Tribunal was entitled to strike out the claim against Health Education England because it had no reasonable prospect of success.

2. Section 43K(1) contains a list of specific extensions to the ordinary definition of worker. The opening words exclude a person who is already a worker within section 230(3). The provision does not add further potential employers for an existing employee or limb (b) worker.

3. Under section 43K(1)(a), the relevant inquiry concerns the terms on which the claimant was engaged to do the work. “Substantially” means “in large part” in this comparative context. The question is which party, or parties jointly, was more responsible for determining those terms. The phrase does not mean “more than trivially”.

4. More than one person may substantially determine the terms, but section 43K(2)(a) still requires the alleged employer to have substantially determined the contractual terms. HEE’s selection of the claimant’s placement, supervision of training and contribution to salary did not compel that conclusion. The clinical work was performed under the employment contract with Lewisham.

5. Section 43K(1)(d) did not apply. The claimant’s training was on-the-job training performed under a contract of employment, rather than the specified form of work experience or training provided otherwise than under such a contract.

6. A purposive construction of the whistleblowing provisions cannot ignore carefully chosen statutory words. Article 10 of the Convention did not require the United Kingdom to provide protection extending to the claimant’s distinct relationship with HEE. Parliament had deliberately delineated the boundaries of protection.

• Employment Tribunal: struck out the claim against Health Education England under rule 37(3), holding that it had no reasonable prospect of success.
• Employment Appeal Tribunal: dismissed the appeal and upheld the strike-out decision.