Day v Lewisham and Greenwich NHS Trust; and Health Education England UKEAT 0250/15; (2016) EMPLR 024
Workers who are treated unfavourably by their employers because they have ‘blown the whistle’ on someone’s wrongdoing can complain to an employment tribunal of unlawful detriment or unfair dismissal. Section 43K of the Employment Rights Act 1996 makes the definition of ‘worker’ for these purposes wider than for most other employment law rights, to include those who are supplied by one organisation to work for another; and the ‘employer’ of such a worker is the organisation that ‘substantially determines’ the terms under which the worker works. This case shows that section 43K widens the range of people who can complain about unlawful detriment for whistle-blowing - it does not widen the scope of whom they can complain against.
D was a trainee doctor. His training placements were arranged by Health Education England (HEE) who placed him with Lewisham and Greenwich NHS Trust. D complained both to the Trust and to HEE that understaffing was posing a risk to patient safety. He claimed he was treated detrimentally as a result. His claim against the Trust was allowed to proceed but he also wanted to claim against HEE. He relied on section 43K. His claim against HEE was struck out because:
section 43K is stated only to apply to those who are not workers. He was a worker employed by the Trust, so he could not rely on the section at all;
- in any case, HEE did not ‘substantially determine’ the terms under which he worked and so could not be regarded as the ‘employer’.
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