The extension of whistleblowing protection for junior doctors and individuals working in multiparty employment relationships
Whistleblowing protections were extended earlier this month for the estimated 54,000 junior doctors working in England, and also, as a result, for agency workers, workers on secondment and a range of other workers who provide their services in multi-party employment arrangements.
Together with Tom Linden QC, we were very pleased to represent Public Concern at Work (“PCaW”), the leading UK whistleblowing charity, as the intervener in the appeal in Day v (1) Lewisham and Greenwich NHS Trust and (2) Health Education England (“the Day Case”).
The Court of Appeal overturned the decision of the Employment Appeal Tribunal (“EAT”) that Dr Chris Day, a junior doctor, was prevented from bringing a whistleblowing claim against Health Education England (“HEE”), the national body responsible for his training, under the extended “worker” definition found in section 43K Employment Rights Act 1996 (ERA). The case has now been remitted to a fresh Employment Tribunal to determine the preliminary issue of whether Dr Day was a worker of HEE on the facts of the case.
A copy of the judgment can be found here.
Wider implications of the case
The decision in the Day Case is of utmost public importance in ensuring that junior doctors working on the front line of the NHS feel confident that they will be protected by whistleblowing legislation should they speak up on matters such as patient safety.
However the decision has a far wider application than to junior doctors alone and potentially affects a range of working arrangements where multiple parties are involved, for example:
- The decision will impact an estimated 865,000 agency workers working in the UK. Statistics presented by the think tank Resolution Foundation have shown there to be a high concentration of agency workers in the health, social care and manufacturing sectors, together making up 35% of agency workers. It is vitally important given the potential risks associated with health and safety and damage to the environment in those workplaces that there is adequate protection for agency worker whistleblowers who suffer retaliation from the end user of their services, as opposed to their primary employer.
- Secondment arrangements, whether between separate corporate entities or intra-group are commonplace in many industries as a means of providing career development, building relationships between two companies and sharing skills within a group. The length of secondments may in some cases be for extended periods of time, involving a high degree of integration into the host company and oftentimes with the employee providing their services on a full-time basis to the host. In such circumstances it is natural that the individual is more likely to raise concerns about their day to day workplace to their host rather than their primary employer.
In addition to traditional intra-group transfers which generally take place after the individual has been employed for a period of time, there is a growing prevalence, particularly within larger financial institutions, for employees to be employed through a corporate group entity specifically set up to run payroll services and with whom the individual enters a contract of employment, e.g. [Name] Bank Employment Services Limited. It is envisioned in those arrangements that from day one the individual will provide their services to another business within the corporate group.
At the end of this alert we consider some of the practical issues for parties operating in multi-party employment arrangements in the light of the decision in the Day Case.
Background to Appeal
Dr Day was a junior doctor working as a specialist registrar with Lewisham NHS Trust (the “Trust”), a position into which he was placed by HEE. HEE plays a key role in the career of junior doctors in the NHS by organising their training programmes, placing them in a series of training posts with NHS Trusts and paying approximately 50% of their salaries.
Whilst working for the Trust, Dr Day made a series of alleged protected disclosures relating to serious understaffing at the hospital and his view that this was endangering patient safety. Those disclosures were made to both the Trust and to HEE. He later brought a claim in the Employment Tribunal (“ET”) against the Trust and other Respondents, including HEE, alleging that he had suffered detriment as a consequence of making these protected disclosures.
To succeed in his whistleblowing claim, Dr Day had to show that he was “a worker” in respect of each of the Respondents, as defined in ERA. There are two definitions of “worker” in the ERA. The first can be found at section 230(3) ERA (the “Standard Definition”) which defines a worker as:
“an individual who has entered into or works under…
(a) a contract of employment, or
(b) any other contract…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 second category of worker is set out in section 43K(1)(a) ERA (referred to in this alert as the “Extended Definition”) and applies only for the purposes of bringing a whistleblowing claim, as follows:
“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”.
In the ET HEE successfully applied to strike out Dr Day’s claim against it as having no reasonable prospect of success, on the ground that he was not a worker vis-a-vis HEE, whether under the Standard Definition or the Extended Definition.
Dr Day appealed to the EAT who dismissed the appeal on the basis that the opening words of section 43K(1) ERA makes it clear that the Extended Definition only applies to “an individual who is not a worker as defined by section 230(3)”, e.g. one who falls under the Standard Definition. As it was not in dispute that Dr Day was a worker of the Trust under the Standard Definition, in the EAT’s view he could not therefore argue that he was also a worker under the Extended Definition for the purposes of his claim against HEE.
Additionally the EAT found that in any event the ET was entitled to find on the facts that HEE had not substantially determined Dr Day’s terms of engagement so as to come under the Extended Definition.
Dr Day appealed against the EAT’s decision on both issues.
Court of Appeal adopts wide interpretation of section 43(K) ERA
On the first issue, the Court of Appeal accepted the appellant and PCAW’s arguments that in order to give purposive effect to the Extended Definition the following italicised words should be read into the introductory words of section 43(K):
“worker includes an individual who as against a given respondent is not a worker as defined by section 230(3)” (words in italics added)
The court recognised that this wide interpretation was necessary to protect whistleblowers who suffered retaliation not from the party with whom the individual had a Standard Definition worker relationship, but the other party in a multi-party relationship.
Determining a worker’s terms of employment
In respect of the second issue, the court held that the ET had engaged in the wrong test in attempting to identify which of the two Respondents had (as between themelves) “substantially determined” to a greater extent the terms on which Mr Day was engaged and failed to recognise that both of the Respondents could have substantially determined the terms.
The court highlighted that the Extended Definition expressly envisaged that the terms of work could be substantially determined by either the end user or a third party introducer/supplier in a tripartite relationship, either individually or by both parties jointly.
The appeal was accordingly upheld and the preliminary issue of whether Dr Day was a worker of HEE under the Extended Definition was remitted to a fresh ET for a determination on the facts in the light of the judgment.
Practical impact of the judgment for multiparty employment arrangements
By recognising that individuals can have more than one ‘employer’ for the purpose of whistleblowing protection, the Court of Appeal’s construction of the Extended Definition now better reflects the complexities of modern working arrangements and we join PCaW in welcoming this decision.
Present day workforces are no longer only made up of employees and will typically include contractors, agency workers, secondees and gig workers, with this pattern expected to rise over coming years. As such, the Day Case may have far reaching application and parties operating in multi-party arrangements should bear in mind the following in the light of the decision:
1. For the end user of agency services or the host employer in a secondment arrangement:
- Be aware that an agency worker or secondee may fall within the Extended Definition of worker set out above, giving rise to whistleblowing protections should they be subjected in your workplace to retaliation for blowing the whistle. Retaliation will include for example (without limitation), terminating a secondment, requesting that an agency send a different worker to you, reducing the number of shifts offered to an agency worker and so on. A worker in such circumstances will be entitled to uncapped compensation based on their actual and future losses, together with an award for injury to feelings, if they are successful in showing at an ET that such treatment was an unlawful detriment by the end user/host company for having blown the whistle on wrongdoing. You may wish to undertake a due diligence exercise of your workforce to identify which individuals may fall within the Extended Definition.
- Ensure that whistleblowing policies and procedures cover and are communicated to those individuals who may fall within the Extended Definition, including that they understand the channels and protections available when raising concerns within your workplace.
- Ensure staff are adequately trained, particularly managers who might deal with whistleblowing, as well as any internal whistleblowing champion, to appreciate that concerns raised by non-employees should be investigated and dealt with in the same way as the concerns of the company’s own employees and that no retaliatory action should be taken against those individuals because they blow the whistle.
- Subject always to commercial considerations, you may wish to seek to minimise any involvement in the determination of terms under which the placement or secondment will take place in order, as far as reasonably possible, to seek to reduce the risk of there being found to be a worker relationship under the Extended Definition. In this regard you may wish to give thought to (without limitation):
- whether the individual’s current employment terms are sufficiently broad to cover any work that you may require the individual to undertake during the term of engagement/secondment and if not, to seek to have that job description amended by the individual’s Standard Definition employer prior to the commencement of work so that you do not become involved with a change of the terms during the period of the engagement/secondment;
- minimising the integration of the individual in your workplace in respect of management matters such as appraisals, leave procedures and conducting grievance and disciplinary processes;
- minimising (and if possible having no) involvement in decisions regarding the individual’s remuneration, for example in respect of feeding into discussions regarding pay reviews or bonuses, as well as not assuming any direct responsibility for additional remuneration such as overtime pay.
- As part of negotiating the contractual documentation dealing with secondments, consideration should be given to the wording of indemnities in relation to costs and liabilities arising from potential unlawful whistleblowing detriment claims (as well as other potential employment claims) against you by an individual relying on the Extended Definition
2. For the employment agency or seconding company:
- Ensure that proper due diligence is undertaken on the end user/host company to check that there are adequate whistleblowing policies and robust investigation procedures to deal with concerns that have been raised.
- Continue to be in regular communication with your employees while they are working outside of your workplace, including by holding informal and formal performance appraisals, so that you can monitor how the engagement/secondment is going and whether the individual has any concerns in relation to their day to day workplace.
- Ensure that points of contact are established between the employee’s manager(s) within your organisation, as well as manager(s) at the end user/host, so that you are kept abreast about how the engagement/secondment is progressing.
- Within the contractual documents, consider whether you require express agreement as to notification processes should one of your employees raise concerns under the end user or host’s whistleblowing policy.
- Ensure that you do not subject your employee to any detriment, by for example removing them from the assignment or subjecting them to a disciplinary process, on the basis of negative feedback from the end user or host company which may be based on the employee having blown the whistle to them.
With the traditional employment relationship on the wane and the rise of the gig economy, the implications of the Day Case are set to be wide ranging, affecting a multitude of sectors and individuals working within those sectors. We expect that the application and impact of this case will only increase over time.
Anna Birtwistle is a partner and Wonu Sanda is a trainee solicitor at CM Murray LLP, specialist employment and partnership lawyers. Anna and Wonu represented PCaW in the intervention in Day v (1) Lewisham and Greenwich NHS Trust & (2) Health Education England.
CM Murray specialises in employment and partnership law, advising multinational employers, senior executives, LLPs, partnership and senior equity partners on complex employment and partnership law issues.
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