Day v Health Education England & Ors

This Court of Appeal considered the proper construction and application of section 43K of the Employment Rights Act 1996, read with Part IVA and sections 47B and 103A, in the context of whistleblowing protection for doctors in training. The court held that the opening words of section 43K should be read as operating "as against a given respondent", so that a person who is a section 230(3) worker in relation to one entity may nonetheless be a section 43K worker in relation to another. The tribunal below was wrong to treat the section as excluding a section 230(3) worker from relying on 43K against all parties, and wrong to proceed on the premise that only one body could "substantially determine" the terms of engagement. The matter was remitted to a fresh tribunal to decide, as a preliminary issue with factual findings, whether Health Education England substantially determined the terms on which Dr Day was engaged.

Background and parties.

Dr Day, a medical trainee allocated to NHS Trusts under training arrangements administered by bodies later part of Health Education England (HEE), alleged that he made protected disclosures about patient-safety related staffing and that he suffered detriments from HEE as a consequence. He brought claims before the Employment Tribunal (ET) against both the Trust and HEE. The ET struck out the claims against HEE on the ground they had no realistic prospect of success, and the Employment Appeal Tribunal (EAT) dismissed his appeal. He appealed to the Court of Appeal.

Nature of the claim and relief sought.

• The claim was for whistleblowing protection and remedies for detriment under Part IVA of the Employment Rights Act 1996: the applicant asserted protected disclosures and consequential detriments.

Issues framed by the court.

1. Whether the opening words of section 43K (that the subsection applies to an individual "who is not a worker as defined by section 230(3)") should be read so as to exclude a person who is a section 230(3) worker in relation to one party from relying on section 43K in relation to another party; and
2. Whether HEE in fact "substantially determined" the terms on which Dr Day was engaged so as to constitute an "employer" under section 43K(2)(a).

Court's reasoning and decision.

The court adopted a purposive construction of section 43K. It rejected the EAT's reading that the opening qualification excluded anyone who was a section 230(3) worker in any context from relying on section 43K against any respondent. Instead the court held that the provision should be read so that the qualification is to be applied with respect to the particular respondent: an individual may be a section 230(3) worker for one body but fall within the extended definition in section 43K as against another body. The court also held that both an introducer and an end-user may, in principle, "substantially determine" the terms of engagement and therefore each may be an "employer" for the purposes of the whistleblowing provisions. The ET had erred in treating the inquiry as requiring identification of a single primary body. The Court of Appeal remitted the matter for a fresh tribunal to determine, after factual findings, whether HEE substantially determined the terms on which Dr Day was engaged. The court also indicated that tribunals should assess the question broadly on what happened in practice and need not restrict themselves narrowly to only express contractual terms, while accepting existing authority that some contractual basis may be required.

Procedural disposition: appeal allowed and remitted to a fresh tribunal to decide as a preliminary issue whether HEE substantially determined the terms of engagement.

Appeal allowed. The Court of Appeal held that section 43K must be read so the exclusion "not a worker as defined by section 230(3)" applies with respect to the particular respondent, allowing a person to be a section 230(3) worker as to one party but a section 43K worker as to another. The ET had misdirected itself by treating the inquiry as requiring identification of a single body that primarily determined terms and by failing to recognise that both introducer and end-user can substantially determine terms. The case was remitted to a fresh tribunal to determine, as a preliminary issue with findings of fact, whether HEE substantially determined the terms on which Dr Day was engaged.

Claim commenced before the Employment Tribunal which struck out the claims against Health Education England as having no realistic prospect of success. The Employment Appeal Tribunal (Langstaff J) dismissed the appeal (UKEATPA/0250/1). Permission to appeal to the Court of Appeal was given and this Court allowed the appeal and remitted the matter to a fresh tribunal. (Current judgment: [2017] EWCA Civ 329.)