This month, Health Education England (HEE) has accepted that, for whistleblowing purposes, junior doctors (those who have been appointed by HEE to a contract of employment and who have a training number) are workers of HEE and have protection.
Typically, junior doctors are employed or engaged by an NHS Trust and can bring whistleblowing claims against the Trust. However, it has been unclear whether they can also bring a claim against the HEE, the body responsible for their education, training and workforce planning. A contractual agreement was in place between the British Medical Association and HEE giving individuals a contractual right equivalent to whistleblowing protection which could be enforced through the civil courts, but there was no clear position for Employment Tribunals.
In recent case law, the Court of Appeal confirmed that it was possible for an individual to have two ‘employers’ for whistleblowing purposes and so could pursue an NHS Trust and HEE. However, the case was remitted to a fresh tribunal to determine if the HEE substantially determined the individuals’ terms (a necessary criteria). The outcome of this is awaited.
However, this month at a preliminary hearing, the HEE accepted that junior doctors were workers of HEE thereby clarifying the position. This case will now proceed to a full hearing.
This case will make it easier for individuals seeking to bring claims against HEE and, depending on the outcome of the Court of Appeal case, may widen the net for whistleblowing claims generally by making it clear that an individual can have two ‘employers’ for whistleblowing purposes.