Day v Lewisham and Greenwich NHS Trust and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Elias,Lord Justice Moylan,Lady Justice Gloster |
| Judgment Date | 07 May 2017 |
| Neutral Citation | [2017] EWCA Civ 329 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2016/1898/EATRF |
| Date | 07 May 2017 |
[2017] EWCA Civ 329
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
MR JUSTICE LANGSTAFF
UKEATPA/0250/1
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Gloster, VICE PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVISION
Lord Justice Elias
and
Mr Justice Moylan
Case No: A2/2016/1898/EATRF
and
and
James Laddie QC and Christopher Milsom (instructed by Tim Johnson/ Law) for the Appellant
David Reade QC and Nicholas Siddall (instructed by Hill Dickinson) for the Respondent
Thomas Linden QC (instructed by C M Murray for Public Concern at Work) for the Interveners
Hearing date: 21 March 2017
Approved Judgment
Introduction
Part IVA, read together with sections 47B and 103A, of the Employment Rights Act 1996 (" ERA"), protects workers who disclose information about certain alleged wrongdoing to their employers (colloquially known as "whistleblowers") from being subjected to victimisation or dismissal as a consequence. There is an extended concept of "worker" and "employer" in section 43K which ensures that certain persons who perform work but do not fall within the general concept of worker found in section 230(3) of the ERA will nonetheless be able to claim the protection afforded by these provisions. This appeal concerns the proper construction of section 43K and the application of that section to a certain category of doctors operating in the health service.
We have heard valuable submissions not only from counsel for the appellant and HEE, Mr James Laddie QC and Mr David Reade QC respectively, but also from Mr Thomas Linden QC who represented the interveners, Public Concern at Work. He made submissions principally on the scope of section 43K.
Background
Dr Day is a medical doctor who wanted to specialise in Acute Care Common Stem Emergency Medicine. In early Spring 2011 he was accepted by the London Deanery, the body then responsible for training doctors in London, to take up a post from August in that year. He entered into a training contract which the parties agreed was not a contract of employment. He was allocated to the respondent NHS Trust.
In April 2013 the Deaneries were taken over by the Local Education Training Boards. They have no independent legal personality but are part of the second respondent, Health Education England ("HEE"). Trainee doctors are allocated for relatively short fixed periods to NHS Trusts. They enter into contracts of employment with each Trust. Initially Dr Day worked at the Princess Royal University Hospital and later, following a short career break, was allocated to the Queen Elizabeth Hospital. He trained in intensive care and then in anaesthetics before his engagement came to an end in August 2014.
Whilst Dr Day was at the Queen Elizabeth Hospital, he raised a number of concerns with both the Trust and with the South London Health Education Board about what he considered to be serious staffing problems affecting the safety of patients. He alleges that these were protected disclosures within the meaning of the relevant legislation on whistleblowers, and he asserts that he was subject to various significant detriments by HEE as a consequence. He took proceedings before the employment tribunal ("ET") against both the Trust and HEE, as the body responsible for the actions of the South London Board. HEE deny any wrongdoing but took a preliminary point that the tribunal had no jurisdiction to hear these claims. In order to bring a whistle-blowing claim, the applicant has to fall within the statutory definition of worker and the defendant has to be his employer. HEE contended that this was not the position and accordingly that even if the facts alleged by Dr Day were true, HEE could not be liable in law for any acts causing him detriment. It is common ground that he did not fall within the definition of worker in section 230(3) and the only question was whether Dr Day was a worker within the extended definition in section 43K and HEE was his employer as defined in that section.
This issue was taken at a preliminary hearing. In principle that was in my view a sensible course of action. There is virtually no overlap in the evidence going to this question and the evidence relating to the merits of the whistle-blowing claims, and a ruling in favour of HEE would bring the proceedings against it to an end. In my view it would have been desirable for this issue to be taken as a preliminary issue to be determined following findings of fact. Unfortunately, the preliminary hearing took the form of an application to strike out the claims on the grounds that they had no reasonable prospect of success. There was an agreed statement of facts as regards the history of Dr Day's involvement with HEE and the ET plainly had some documentation relating to the terms and conditions of employment. There were also witness statements from both Dr Day and Mr Mckay, an officer who worked on behalf of Health Education South London, who also gave evidence orally. In the light of the material it had, the ET concluded that the claims against HEE had no realistic prospect of success and struck them out. Dr Day unsuccessfully appealed that decision to the Employment Appeal Tribunal ("EAT"). I gave permission for Dr Day to appeal to this court.
The legislation
Section 230(3) of the ERA provides a general definition of "worker" as follows:
"In this Act "worker" …means an individual who has entered into or works under (or, where the employment has ceased, worked under)—
(a) a contract of employment, or
(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual."
The extended definition of worker relevant to this appeal is found in section 43K(1)(a):
"For the purposes of this Part "worker" includes an individual who is not a worker as defined by section 230(3) but who—"
(a) 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…..
And any reference to a worker's contract, to employment or to a worker being employed shall be construed accordingly."
(I will refer to the person for whom the individual works as the end-user, and the party introducing or supplying that worker as the introducer.)
The subsection then sets out a number of other groups of workers who are brought within the scope of the section including some working in the NHS and certain individuals pursuing work experience.
An extended concept of "employer" is also adopted, being defined by reference to the extended definition of "worker" in section 43K(2)(a):
"For the purposes of this Part "employer" includes—
(a) in relation to a worker falling within paragraph (a) of subsection (1), the person who substantially determines or determined the terms on which he is or was engaged,
The principal set of relationships caught by this definition is agency relationships, but the section is not limited to them.
I would make two preliminary observations about these definitions. The first is that if the terms on which the individual is engaged are substantially determined by the individual himself, he cannot bring himself within this extended definition of "worker". That is so even if the end-user and/or introducer can also be said substantially to determine the terms of engagement. The second is that if the terms of engagement are not substantially determined by the individual, his employer is the person who does substantially determine them. It is envisaged in section 43K(1)(a)(ii) that this may be both the end-user and the introducer. That might be either because the introducer and the end-user determine the terms jointly, or because each determines different terms but each to a substantial extent. Mr Reade submitted that notwithstanding that both introducer and end-user may substantially determine the terms of engagement, the definition of employer in subsection 43K(2)(a) was limited to the person who played the greater role in determining the terms of engagement. He submitted that this follows from the reference to " the person" in that sub-section. I see no warrant for restricting the scope of the section in that way. By section 6 of the Interpretation Act 1978 the singular includes the plural unless the contrary intention appears, and in my view it does not do so here. Indeed, Mr Reade's construction involves giving a different meaning to "substantially determines" in subsection (1) than in subsection (2). Since both introducer and end-user can in principle substantially determine the terms of engagement for the purposes of the definition of worker, I see no basis for concluding that they cannot do so when it comes to applying the extended definition of employer. This will in some cases have the effect that both introducer and end-user are employers and each will then be subject to the whistleblowing provisions. Indeed, that would seem to be an inevitable conclusion if the terms are determined by the end-user and introducer acting jointly. If only one party can be the employer, it is difficult to see by what principle it would be possible to determine who that should be.
The issues in the appeal
...
To continue reading
Request your trial
-
Ms R Moon v Lancashire and South Cumbria NHS Foundation Trust: 2414248/2021
...relationship of some kind as between the putative worker and the putative respondent. 101. In Day v Health Education England [2017] EWCA Civ 329 Elias LJ observed (at “I would make two preliminary observations about these definitions. The first is that if the terms on which the individual i......
-
Ms Z Windle v The Chief Constable of West Yorkshire Police and others: 1802008/2019 and others
...assignments. The claimants were found not to be workers pursuant to section 230(3). 15. In Day v Lewisham and Greenwich NHS Trust [2017] EWCA Civ 329 the Court of Appeal held that words should be read into section 43K so as to exclude a claim by an employee or worker falling within section ......
-
Maria Bamieh v EULEX Kosovo and Others
...Tribunal erred in concluding that the claims against EULEX were not within territorial scope. Following Day v Health Education England [2017] ICR 917 and the Employment Tribunal’s findings at paragraph 25, EULEX was axiomatically the Claimant’s coemployer pursuant to s.43K(1)(a) ERA As to t......
-
Ms R Moon v Lancashire and South Cumbria NHS Foundation Trust: 2414248/2021
...relationship of some kind as between the putative worker and the putative respondent. 101. In Day v Health Education England [2017] EWCA Civ 329 Elias LJ observed (at “I would make two preliminary observations about these definitions. The first is that if the terms on which the individual i......