The Court of Appeal has recently held that a doctor can fall under the definition of a ‘worker’ for the purposes of raising a whistleblowing claim against a training body in the Employment Tribunal, even where the already fall under the traditional definition of a ‘worker’ in relation to their employment with an NHS Trust.
In Day v Health Education England, the Court held that a purposive construction of the Employment Rights Act 1996 should be used to extend the definition of a worker from applying only to their employer to another employer, introducer or end-user.
Doctors wishing to become consultants/specialists in an area of medicine are required to have a training contract with a training body, which then places them with an NHS Trust, who in turn become the doctor’s employer.
At the Employment Appeal Tribunal it was decided that Dr Day could not be a worker in relation to a whistleblowing claim against the training body as he was a ‘worker’ under the traditional definition in relation to his employment with the NHS Trust. The Court of Appeal disagreed and found that the fact that Dr Day was employed by the NHS Trust did not prevent the training body from also holding the status of his employer. The Court’s reasoning for this was that it was possible that both the NHS Trust employing Dr Day and the training body could ‘substantially determine the terms’ on which Dr Day was engaged.
The Court of Appeal further held that the Employment Tribunal erred at the initial hearing of the claim when it asked which of the NHS Trust and training body played the greater role in determining the terms upon which Dr Day was employed and failed to give consideration to the possibility that both parties could ‘substantially determine’ Dr Day’s terms of engagement. The case has now been referred back to the Employment Tribunal to determine the degree to which the training body did in fact ‘substantially determine’ the terms of Dr Day’s employment.
It is likely that this decision, subject of course to any appeal Health Education England may wish to lodge, will allow medical professionals to raise claims against training bodies for claims other than whistleblowing (for example unfair dismissal/discrimination), but these claims will depend on the particular facts and circumstances of the matter and each will be considered on case by case basis.
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