Whistleblowing Protection and Concurrent ‘Worker’ Status for a Junior Doctor: Day v Health Education England

Abstract

In Day v Health Education England1 (Day), the Court of Appeal (the CA) had the opportunity to consider whether the relationship between a junior doctor and Health Education England, the organisation responsible for organising training and posts for post-graduate trainee doctors, came within the protection from detriment for whistleblowers under the Public Interest Disclosure Act 1998 (PIDA). From a socio-political perspective, this case is of particular significance, set against a backdrop of the Francis Report into the catastrophic failings of the Mid-Staffordshire NHS Trust2 and the recognition in that report of the necessity of a cultural shift at organisational level to ensure that NHS workers feel able to raise concerns without fear of detriment. The potential compromising of whistleblowing protection in working relationships falling outside the primary working relationship if the Employment Tribunal and Employment Appeal Tribunal ruling had been upheld, led to Public Concern at Work joining the proceedings as an interested party.3 From a legal perspective, it is Elias LJ’s reasoning on the statutory interpretation of the relevant legislative provisions which is noteworthy and likely to prove useful in the future development of the law. By allowing the appeal and holding that Dr Day’s relationship with Health Education England (HEE) could come within the scope of the extended definition of worker in section 43K(1)(a) of the Employment Rights Act (ERA), it is suggested that this judgment provides the right framework for future analysis of the ‘worker’ and ‘employer’ relationship.