Newsletters Professional Discipline 17th May 2017

Day v Health Education England [2017] EWCA Civ 329

The Court of Appeal makes clear that protection for whistle-blowers is an issue of paramount importance

Dr Day had obtained a training contract with the London Deanery with a view to specialising in Acute Care Common Stem Emergency Medicine. He was given a training contract and allocated to Lewisham and Greenwich NHS Trust (“the Trust”). These Deaneries have now been taken over by the Local Education Training Boards, which form part of Health Education England (“HEE”).

Dr Day raised a number of concerns with both the Trust and South London Health Education Board in relation to staffing issues in the Trust and the safety of patients. He alleged he suffered detriment as a result of this disclosure. He brought an employment claim against HEE and the Trust. The Employment Rights Act 1996 (“the Act”) protects “workers” from any victimisation from their “employers” as a result of their whistle-blowing. As a preliminary point HEE argued that neither Dr Day nor HEE fell within these definitions, and there could be no claim based on HEE’s failure to protect him as a whistle-blower.

The Employment Tribunal and the Employment Appeal Tribunal both agreed. The Court of Appeal did not.

The principle definition of a “worker” in the Act is defined in s. 230(3) of the Act. In the case of whistle-blowers, this definition is extended by s. 43K(1)(a) to cover, for example, agency workers. This section begins: “For the purposes of this Part “worker” includes an individual who is not a worker as defined by section 230(3) but who-”. HEE argued that since Dr Day was caught by the definition in s. 230(3) insofar as he was a “worker” for the Trust, he could not then avail himself of the broader definition in s. 43K(1)(a) and allege he was a worker for the purposes of a claim against HEE as well.

On a literal interpretation that was right. Equally, as the court observed, it would mean that an agency worker at a hospital who also had a second job as a waitress, working under a contract of employment, would not fall within s.43K(1)(a) either and could never allege discrimination as a result of whistle-blowing against that hospital. That would be nonsensical.

The section had to be given a sensible interpretation. It should be understood to mean that a ““worker” includes an individual who as against a given respondent is not a worker as defined by section 230(3)”. In justifying this purposive interpretation, the court noted:

where, as here, some words need to be read into the provision because a literal construction cannot be what Parliament intended, then in my view the court should read in such words as maximise the protection whilst remaining true to the language of the statute”.

HEE argued further that it was not an “employer” for the purposes of s. 43K(2)(a) which requires that an employer “substantially determine” the terms of employment. It maintained that was the Trust, not HEE. The court found the tribunal had considered the wrong test in relation to this section. It had determined that since the Trust did substantially determine he terms of employment, HEE could not be an “employer” as well. That did not follow. It was possible for both parties to play a substantial part in this process. The matter was remitted for this issue to be reconsidered.


The case is another reminder of the vital importance attached to whistle-blower protection. The court was clearly influenced by this powerful policy consideration. It is clear that where appropriate legislation will be interpreted to give greater effect to it. In the health sector, these policy considerations form part of the cultural shift the Francis report was so keen to embed – a culture of openness, candour and constructive response to criticism. It is a cause the Professional Standards Authority in particular is vigorously pursuing. Increasingly legislation, rules, codes and determinations are being interpreted and understood in light of this paradigm.

Christopher Geering

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