Day v Health Education England & Ors

For whistleblowing protection, the extended definition of worker in the Employment Rights Act 1996 operates against each respondent separately. A worker’s section 230(3) relationship with one party does not prevent reliance on the extended definition against another. Both an end-user and an introducer may be employers where each substantially determines the terms of engagement. The tribunal must assess that question broadly, including practical factors, and need not identify which party played the greater role.

Dr Day, a trainee doctor, was employed by an NHS Trust while receiving training arranged by Health Education England. He brought whistleblowing claims against both bodies, alleging detriments after making protected disclosures. The Employment Tribunal struck out the claims against HEE on the basis that they had no realistic prospect of success. The Employment Appeal Tribunal, before Langstaff J, upheld that decision.

The appeal concerned whether Dr Day’s employment by the Trust prevented him from being a worker, and HEE from being an employer, under the extended definitions in section 43K of the Employment Rights Act 1996. It also concerned whether the tribunal had applied the correct test when deciding whether HEE substantially determined the terms of his engagement.

Elias LJ delivered the leading judgment, with Moylan LJ and Gloster LJ agreeing. The appeal was allowed and the matter was remitted to a fresh employment tribunal.

1. The opening words of section 43K are respondent-specific. A person is excluded from the extended definition only where that person is already a section 230(3) worker in relation to the respondent against whom protection is sought. Dr Day’s employment by the Trust therefore did not, in principle, prevent him from relying on section 43K against HEE.
2. The extended definition permits both an end-user and an introducer to be employers where each substantially determines the terms of engagement. The legislation does not require the tribunal to identify which party played the greater role. Section 6 of the Interpretation Act 1978, under which the singular may include the plural, supported that construction.
3. The whistleblowing provisions require a purposive construction, but that approach cannot distort statutory language merely to advance a perceived policy objective. Where a literal construction cannot reflect Parliament’s intention, the court should adopt wording which maximises protection while remaining faithful to the statutory language. This approach was consistent with Fecitt and Others v NHS Manchester [2012] ICR 372 and the observations approved in McTigue v University Hospital Bristol NHS Trust [2016] ICR 1156.
4. The Employment Tribunal had asked which body played the greater role in determining the terms of engagement. That was the wrong approach. It had to decide whether HEE itself substantially determined those terms. The inquiry should be broad-brush and take account of all factors bearing on the practical terms on which the work was undertaken. It was not confined to contractual terms, although some contractual relationship with the putative employer might be required, consistently with Sharpe v Bishop of Worcester [2015] ICR 1421.
5. The Court of Appeal could not determine the factual issue itself. The matter was remitted to a fresh tribunal to decide, as a preliminary issue after appropriate findings of fact, whether HEE substantially determined the terms of Dr Day’s engagement.

• Court of Appeal (Civil Division), [2017] EWCA Civ 329: allowed the appeal and remitted the issue to a fresh employment tribunal.
• Employment Appeal Tribunal, UKEATPA/0250/1, before Langstaff J: upheld the Employment Tribunal’s strike-out decision.
• Employment Tribunal: struck out the claims against HEE on the basis that they had no realistic prospect of success.