Dr Day entered into a training contract with Health Education England (“HEE”). HEE placed Dr Day on a series of training placements with different NHS trusts. Dr Day lodged a complaint about serious understaffing at one of the hospitals he attended during training and claimed he had been subjected to various detriments by HEE as a result.
HEE denied any wrongdoing but believed the Tribunal had no jurisdiction to hear Dr Day’s whistleblowing claims as he did not fall within the statutory definition of a worker and HEE was not his employer. The Tribunal and EAT agreed and upheld this argument. Dr Day appealed to the Court of Appeal with the help of a crowd-funding appeal which raised over £140,000.
The Court of Appeal held: (i) HEE could fall within the scope of Dr Day’s employer despite him having a separate contract with the NHS Trust; and (ii) The Tribunal failed to consider whether both the NHS Trust and HEE could substantially determine Dr Day’s terms of engagement. The case was remitted to a fresh tribunal to consider whether HEE could also be Dr Day’s employer for whistleblowing purposes.
The Court of Appeal’s guidance is in line with the EAT’s decision in McTigue v University Hospital Bristol NHS Foundation Trust, which we blogged on last year. It also provides a useful reminder that the reality of a relationship rather than contractual terms will, in most cases, determine employee status. For further information in this area, please contact our employment team.