Day v Lewisham and Greenwich NHS Trust and Health Education England UKEAT/0250/15/RN

Appeal against a decision to strike out the Claimant’s whistleblowing claim on the basis that it had no reasonable prospect of success. Appeal dismissed.

The Claimant was a junior doctor who worked under a contract of employment with Lewisham and Greenwich NHS Trust. He made various disclosures about patient safety to the Trust and also repeated them to HEE, which (although not his employer) had arranged his training placements, paid a sizeable proportion of his salary and reviewed his progress as a junior doctor. The Claimant alleged that he had been treated detrimentally by HEE and asserted that his treatment arose as a result of raising protected disclosures. He brought proceedings against the Trust and HEE. However, the Tribunal struck out his claim against HEE, as he was neither employed by HEE nor did he come within the extended definition of 'worker' under section 43K of the Employment Rights Act 1996. He was therefore adjudged to be outside the protection afforded by statute. The Claimant appealed, broadly on the ground that a purposive approach, underpinned by Article 10 of the ECHR, should be adopted in interpreting the statute.

The EAT dismissed the appeal. Parliament had carefully delineated the extent to which protection from detriment for whistleblowing should extend and the Claimant's relationship with HEE clearly lay outside those limits. Whilst a purposive approach to whistleblowing was often appropriate, the Tribunal was bound to follow the express provisions of statute, which clearly restricted protection to those categories of worker within sections 47B and 43K of the Employment Rights Act 1996.

Tim Crane, Employment Law Solicitor

_______________

Appeal No. UKEAT/0250/15/RN

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 10 February 2016

Judgment handed down on 9 March 2016

Before

THE HONOURABLE MR JUSTICE LANGSTAFF

(SITTING ALONE)

DAY (APPELLANT)

(1) LEWISHAM AND GREENWICH NHS TRUST

(2) HEALTH EDUCATION ENGLAND (RESPONDENTS)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellant MR CHRISTOPHER MILSOM (of Counsel) Instructed by Tim Johnson Law 117 Temple Chambers 3-7 Temple Ave Temple London EC4Y 0HP

For the First Respondent (Lewisham and Greenwich NHS Trust) No appearance or representation by or on behalf of the First Respondent

For the Second Respondent (Health Education England) MR NICHOLAS SIDDALL (of Counsel) Instructed by Hill Dickinson LLP 50 Fountain Street Manchester M2 2AS

**SUMMARY**

VICTIMISATION DISCRIMINATION - Protected disclosure

A Specialist Registrar in Medical Training worked under a contract of employment with Lewisham NHS Trust. He made disclosures about patient safety, and repeated them to Health Education England ("HEE") who arranged his training placements, were responsible for paying a substantial part of his salary to Lewisham, and who regularly reviewed his progress as a doctor in training. He claimed to have been treated detrimentally by HEE as a result of his repeated disclosure to it. Since HEE was not his employer, within the scope of s.230 ERA 1996, and was not within any of the categories in s.43K of the ERA 1996 as the Tribunal interpreted it, it struck out his claim against HEE. On appeal, it was argued that a purposive approach, underpinned by Article 10 of the ECHR, should be taken to the interpretation of the statute, and that the ET had been wrong to construe the section as it did. The appeal was rejected.

**THE HONOURABLE MR JUSTICE LANGSTAFF**
  1. This appeal arises in respect of the arrangements for training junior doctors in English hospitals.
  1. The Claimant applied nationally to the predecessor of Health Education England ("HEE") to train in emergency medicine. He entered into what was called a training contract, which the parties agreed in writing was not a contract of employment, with what later became HEE, which was responsible for organising training programmes of and posts for post-graduate trainee doctors. He was placed by HEE with the Respondent Trust ("Lewisham"), where he worked as a specialist registrar in Acute Care Common Stem Emergency Medicine.
  1. He worked latterly at the Queen Elizabeth Hospital in SE18. He complained that patients' safety there was compromised by serious under-staffing. The complaints were made not only to the hospital, where he worked under a contract of employment with Lewisham, but also, he claimed, at meetings with HEE held to review his progress in training.
  1. His complaint to an Employment Tribunal at London South that he had suffered detriment in consequence of these revelations was initially brought against 5 Respondents, but by agreement or decision these reduced to two: the NHS Trust in respect of which the Claimant was an employee (Lewisham); and the third Respondent (HEE).
  1. To be entitled to claim compensation for having suffered a detriment for making a disclosure a Claimant must bring himself within Part IVA of the Employment Rights Act 1996. The right is conferred by Section 47B, headed "Protected Disclosures", in these terms:-

"1. A worker has the right not to be subjected to any detriment by any act or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure."

  1. To make such a claim, therefore, a Claimant has to show that he is "a worker" within the meeting of Part IVA of the 1996 Act, that he has made a "protected disclosure" as defined by that Part, and that the act, in respect of which he claims, has been done by "his employer", within the meaning of that word adopted for the purposes of Part IVA.
  1. Section 230(3) defines what the word "worker" means for the purposes of the Act as a whole. It reads, so far as material:-

"(3) in this Act "worker"… means an individual who has entered into or works under (or, where the employment has ceased, worked under) – (a) a contract of employment or (b) any other contract whether express or implied and (if it is expressed) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;…"

Sub-section (4) deals with the co-relative position of the employer:

"In this Act "employer", in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed."

  1. Since in respect of the work which the Claimant did on the wards he was an employee of Lewisham, since his relationship with HEE was expressly accepted in writing between them not to amount to a contract of employment, and since he did not contend that HEE was his employer within the meaning of Section 230(4), it might be thought that he could not bring himself within Section 47B of the 1996 Act so as to make a claim in respect of any actions of HEE taken in response to its knowledge that he had made a protected disclosure arising out of his service with Lewisham. However, Section 43K provides extended meanings of "worker" and "employer" for the purposes of Part IVA (see below). HEE contended that he could not bring himself within the extended definition and accordingly had no reasonable prospect of success in his complaint against it. It applied to the Employment Tribunal to strike out the claim under Rule 37(3) of the Employment Tribunal Rules (as set out in a schedule to the Employment Tribunals (Constitution and Rules of Procedure etc.) Regulations 2013. That rule permits the Tribunal to strike out a claim if it has no reasonable prospect of success. It may do so at a preliminary hearing (Rule 53). At such a preliminary hearing, Employment Judge Hyde held that the Claimant could not bring himself within the scope of Section 43K in the circumstances which he alleged, that his claim therefore had no reasonable prospect of success and that it should be struck out.
  1. The Claimant appeals against that decision. On the appeal he is represented by Mr Milsom (who did not appear below), and HEE is represented by Mr Siddall (who did).
**The Tribunal Decision**
  1. When considering whether to strike out a claim a Tribunal must accept the facts asserted by the Claimant in his originating application, taken at their reasonable highest in his favour. The parties agreed many of these facts. It is not necessary for me to refer to them save that the Claimant was employed at the Queen Elizabeth Hospital by Lewisham under a contract of employment from 6th August 2013 to 6th August 2014 and resigned from that post with effect from 7th August 2014.
  1. The argument before the Tribunal proceeded upon the basis that the Claimant had to show that he was a worker and that HEE was an employer within the meaning of Section 43K.
  1. Section 43K, headed "Extension of Meaning of "worker" etc. for Part 4A" provides, so far as material:-

"(1) For the purposes of this Part "worker" includes an individual who is not a worker as defined by Section 230(3) but who –

(a) works or worked for a person in circumstances in which –

(i) he is or was introduced or supplied to do that work by a third person and

(ii) the terms on which he is or was engaged to do the work are or were in practice substantially determined not by him but by the person for whom he works or worked, by the third person or by both of them,

(b) contracts or contracted with a person, for the purposes of that person's business, for the execution of work to be done in a place not under the control or management of that person and would fall within Section 230 (3) (b) if for "personally" in that provision there were substituted "(whether personally or otherwise)",

(ba) works or worked as a person performing services under a contract entered into by him with the National Health Service commissioning Board… or with a local health board…

(bb) works or worked as a person performing services under a contract entered into by him with the health board under… the National Health Service (Scotland) Act…

(c) works or worked as a person providing services in accordance with arrangements made (i) by the National Health Service commissioning Board…

(cb) is or was provided with work experience provided pursuant to a course of education or training approved by, or under arrangements with the Nursing and Midwifery Council in accordance with Article 15(6)(a) of the Nursing and Midwifery Order 2001, or

(d) is or was provided with work experience provided pursuant to a training course or programme or with training or employment (or with both) otherwise than (i) under a contract of employment or (ii) an educational establishment on a course run by that establishment;

and any reference to a worker's contract, to employment or to a worker being employed shall be construed accordingly.

(2) For the purposes of this Part "employer" includes – (a) in relation to a worker falling within paragraph (a) of sub-section (1) the person who substantially determines or determined the terms on which he is or was engaged (a)(a) in relation to a worker falling within paragraph (b)(a) of that sub-section the National Health Service commissioning Board or the Local Health Board referred to in that paragraph (a)(b) in relation to a worker falling in paragraph (b)(b) of that paragraph, the Health Board referred to in that paragraph (b) in relation to a worker falling within paragraph (c) of that sub-section the Authority or Board referred to in that paragraph and (c) in relation to a worker falling within paragraph (c)(b) or (d) of that sub-section, the person providing the work experience or training…. (4) The Secretary of State may by order make amendments to this section as to what individuals count as "workers" for the purposes of this part despite not being within the definition in section 230(iii)."

  1. Though the Claimant had asserted in his ET1 that he came within both sub-sections 43K(1)(a) and (d), he abandoned the latter claim before the hearing before Employment Judge Hyde.
  1. The Tribunal decided that it was arguable that the Claimant had been supplied by HEE to do the work he did for Lewisham in a training post as specialist registrar in ACCS Emergency Medicine. He thus arguably met the requirements of Section 43K(1)(a)(i). But it held he did not meet the terms of (ii). His case was that the terms on which he was engaged to do the work were in practice not substantially determined by him. So much was accepted by HEE. The Statute also required, however, that to bring a Respondent within the extended scope of Part IVA of the Employment Rights Act 1996 as an employer within section 43K, the Respondent must be the person who substantially determines or determined the terms on which he is or was engaged (section 43K(2)(a)). Here, the Claimant did not offer any clear factual basis for asserting that the terms were determined by HEE (the Tribunal said at paragraph 44 that he had not explained his case on this); and the Tribunal accepted that the terms governing the training of doctors were set out in what was known as the "Gold Guide", (the 2013 Reference Guide for Post Graduate Specialty Training in the UK). It was not suggested that HEE was responsible for the Gold Guide. Accordingly, insofar as what he did was training, the terms relating to that aspect of his work were not determined by HEE. Insofar as it was the performance of clinical duties, HEE argued that the documentary evidence showed that Lewisham was the body substantially responsible for determining the Claimant's terms and conditions of work. The offer letter from Lewisham to the Claimant "pointed overwhelmingly to [Lewisham] determining the terms and conditions on which the Claimant undertook work", and this picture was confirmed by oral evidence summarised at paragraph 51:

"…to the effect that the responsibility of the Respondents was to organise the training pathway. Further at para. 7 of the Claimant's witness statement he confirmed that in each Trust in which he worked "…grade, pay, and other working conditions such as holiday entitlement and sick pay were those agreed nationally for NHS employees undergoing specialty training as Junior Doctors" this was a reference to the terms and conditions arrived at after negotiations between the relevant medical Trade Unions and the relevant NHS employers. The Respondents fell into neither category"

Holding that the focus was on the work, and who substantially determined the terms on which the employee or worker did the work, the Tribunal agreed that though it was relevant that HEE's role was to arrange the training of the Claimant over an extended period HEE could not be said substantially to determine the terms on which he did the work for the Trust:

"Here there was a training relationship which subsisted alongside the employment relationships with the various Trusts who were the Claimant's employers and determined the terms on which he performed his work on their own, or with others, not including the Respondents. The claim against [HEE] therefore had no reasonable prospects of success."

**The Appeal**
  1. Neither the skeleton argument nor, to an even greater extent, the oral submissions advanced by Mr Milsom entirely reflected the way in which the appeal was put in the Notice of Appeal. This may be because to a significant extent the Notice had relied upon authority at the EAT level which has since been overtaken by a clear appellate judgment.
  1. The first ground was that the Tribunal had erred in its interpretation of Section 43K (1) (a)(ii) and Section 43K(2)(a) in that the Tribunal had implicitly rejected the possibility of there being multiple employers, and had effectively ignored the words "…or by both of them" at the end of sub-section43K(1)(a)(ii). This was, in effect, an argument that the Tribunal looked to see who had principally determined the terms on which the Claimant was engaged to do the work and had not interpreted the word "substantially" as meaning anything more than merely trivially, as it was argued it should have done. Thus where two parties had between them determined the terms upon which a Claimant worked, but had done so to a different extent, each might substantially have determined the terms.
  1. The second and third reasons for arguing that the Tribunal had erred in interpreting the statute were that it had adopted a contractual analysis of "the terms…(etc)" whereas it had been recognised inKeppel Seghers Ltd v Hinds [2014] ICR 1105 at paragraph 59 by HHJ Eady QC that: s.43K

"…is a provision that takes employment lawyers outside the comfort zone of the contractual approach normally required in determining employment status. The protection extends to relationships where there is no contract in existence between the parties (see Cox J in Sharpe [a reference to Sharpe v Worcester Diocesan Board of Finance Ltd [2014] ICR D9] at paragraph 237) and to cases where there might be no direct contract between the complainant and the user of her services but contracts between each of them and other parties, impacting upon (if not governing) their relationship…..

In the present case, the Claimant was seeking the protection of the legislation in respect of treatment he alleges was meted out to him by the Respondent as a result of a protected disclosure he claims to have made. He did not have a direct contractual relationship with the Respondent. His services were engaged through a series of contractual agreements. I see force in the submissions made for the Claimant in this appeal that using those various contracts as the starting point might be less helpful in a case under section 43K(1)(a)(i). The focus of that provision is on what happened in practice rather than on the contractual agreement. ….."

If the protection was therefore said to extend through relationships where there was no contract in existence between the parties it would be an error to focus on purely contractual terms.

  1. In loyally following the decision of the Appeal tribunal in Sharpe, HHJ Eady QC is now known to be in error, for it was subsequently successfully appealed. (The appeal decision is reported at [2015] ICR 1241). In the judgment of Arden LJ with which Davis and Lewison LJJ agreed she said:

"(3) "Worker" issue

112. a worker is a person who cannot establish that he is an employee. It is common ground that Section 43K(1)(a)(ii) of the Employment Rights Act 1996 was enacted primarily to protect agency workers.

113. The conclusion which I have reached above that there was no contract means that there is also no contract for the purposes of Section 43K(1)(b). The only question is whether there also needs to be a contract for the purpose of Section 43K(1)(a). The Employment Appeal Tribunal held that on the true interpretation of this provision there was no requirement for a contract.

114. Mr Bowers essentially submits that where Parliament refers to contract it uses the word "contract" and when it refers to "terms" there need be no contract. Mr Linden submits that this is wrong. The word "terms" is used because there have to be terms imposed. The sub-section is not intended to apply to non-contractual situations: it has likewise been held that measures to combat discrimination to persons in their occupations do not apply to volunteers: X v Mid Sussex Citizens Advice Bureau [2013] ICR 249

115. In my judgment this is a short point. It must inevitably follow from the statutory reference to "term on which he is or was engaged to do work" that there must be a contract."

  1. The third point taken in support of the first ground was that the Tribunal erred in placing emphasis on day-to-day control of the Claimant's work. For this point, White and another v Troutbeck SA [2013] IRLR 949 was cited. This authority did not feature in any of the authorities to which I was referred during the hearing, even though there were 35 of these put before me. It is not surprising that there was no such reference: the point would in any event have been misplaced, since in White and another v Troutbeck SA the Court of Appeal decided that on the particular facts of that case the Employment Tribunal had placed too much emphasis on their being little day-to-day control of the Claimant's work in deciding that there was no contract of employment when, on a proper application of the appropriate test, there was. It was a very different point in a very different case, turning on its own facts, and in any event established almost the reverse of the point relied on in this appeal. This left the central point on interpretation as being the force to be given to the phrase "substantially determined".
  1. The second ground was that the Tribunal erred in law or acted perversely in seeking to distinguish "training" from "work". Here the Notice of Appeal argued that Section 43K(1)(d) made it plain that whistle-blowing protection was intended to cover work experience and training. The whole purpose of the Claimant's employment was training. HEE paid a considerable proportion of the Claimant's remuneration for that purpose. The distinction was therefore untenable.
  1. This argument merited one paragraph in an 87 paragraph skeleton argument, accompanied by a request to withdraw a concession that Section 43K(1)(d) did not apply to the present case. This request was not pursued with any vigour orally, and I need say no more about it, save to comment that to describe the work which a specialist Registrar in a training grade does in a hospital as "work experience provided pursuant to a training course or programme" is unrealistic, and that I decline the request. It is not claimed to have been made in error: in any event, in my view, the subsection is not one which covers those in the Claimant's situation, and for what it is worth the concession was rightly made.
  1. The point taken ignores the precise terms in which Section 43K(1)(d) is expressed – which is not that whistle-blowing protection covers all and any work experience and training, but a particular form of work experience, and in any event includes only such an experience provided otherwise than "under a contract of employment". Since the training in the present case was "on the job", and the job was performed under a contract of employment, the argument falls away. Insofar as the Tribunal considered the role of HEE was relevant; it was for the Tribunal to attach what weight it thought appropriate; upon it, and its decision could not remotely be said to be perverse.
  1. As a third ground, it was asserted that the Employment Tribunal misdirected itself on the facts, and provided inadequate reasoning. In a phrase which Mr Siddall, with some justification, characterised as difficult to understand, the Tribunal's error was described in the Notice of Appeal as the Tribunal regarding the agreed factual background as a "ceiling not a floor". More evidence had been given than the Tribunal recorded in its judgment. The Tribunal had not explained what it made of this evidence in reaching its conclusion. Alternatively, it mis-directed itself in reaching a perverse decision since HEE had selected the Claimant for the particular training post at Queen Elizabeth Hospital; paid a substantial proportion of his salary; agreed his career break (before he came to Queen Elizabeth Hospital); continued to supervise him (in respect of his training) and by imposing a requirement to undergo counselling before accepting further placement at Guys and St Thomas's was able to place conditions upon his continued working. The Tribunal therefore could not legitimately reach the view that the terms on which the Claimant is or was engaged to do the relevant work had not been substantially determined by HEE.
  1. The answer to this submission was convincingly given by Mr Siddall, by drawing attention to the well-established principle that the requirement to tell a party why that party has lost does not require the Tribunal to set out each and every point which might have been disputed before it and say why it had determined that point as it did: see the comments of the Appeal Tribunal in Receptek v Pearce [9th October 2014] UKEAT/186/14 at paragraph 30.
  1. In my view, the argument as to perversity is bound up with the question whether the Tribunal correctly addressed the law in determining whether the terms on which the Claimant was engaged to do the relevant work were substantially determined by HEE.
  1. The central focus of the appeal as advanced orally, therefore, was on the proper interpretation of Section 43K. HEE had argued in its ET3 that the opening words of Section 43K(1) were such that where an individual was a Section 230(3) worker none of the separate situations in which the meaning of "worker" might be extended by section 43K could apply. In effect, they were extensions, to be adopted where needed, and not additions, giving further parties to sue in respect of a complaint which would already be answered by the employer in respect of a Section 230(3) worker. Though this argument is not recorded by the Tribunal, it was a point which was alive before it, and, in any event, there has been no objection by Mr Milsom to it being developed on appeal. I do not think that it is truly a "new point" argued for the first time on appeal, but if it were, I would in the particular circumstances of this case have exercised my discretion to permit it. The issue is one of hard-edged law; the point was raised beforehand; the point could be a "knockout" one and it seems to me that the section falls to be interpreted as a whole, of which this is a material part since the opening words of Section 43K(1) govern what follows.
  1. Mr Milsom argued that the expression "who is not a worker as defined by Section 230(3) but who…" did not exclude a claim by somebody who was an employee, or worker within "limb (b)" of the Section 230(3) definition from making a claim if his circumstances also fell within any of the categories set out from s.43K(1)(a) – (d). He argued that the purpose of the section was to extend the meaning of a term which already encompassed a wide range of situations in which one person worked for another. In his skeleton argument he submitted that the intention was "to encompass all those in an economically subordinate position bar limited exceptions". A purposive approach should be taken to whistle blowing provisions. In Croke v Hydro Aluminium Worcester Limited [2007] ICR 1303 Wilke J had said:

"Where statutory provisions are explicitly for the purpose of providing protection from discrimination or victimisation it is appropriate so far as one properly can to provide protection rather than to deny it."

These words were echoed by the appeal tribunal inBP PLC v Elstone [2010] IRLR 558, at pargraph 17: "I accept therefore that in so far as there is room for it, the statute should be construed (as case law suggests) so as to advance that purpose". That approach had been echoed by HHJ Eady QC in Keppel Seghers. Doctors, and in particular doctors in training, were professionals and public servants whose entitlement – indeed, duty – to speak out on matters of concern was well recognised. The effect of the construction for which the Respondent contended was that HEE could penalise the Claimant, in a way which affected the continuation of his training, without being called to account. This created a lacuna in the protection which the statute was intended to provide. The fact that the meaning of "worker" was extended by Section 43K(1)(cb) demonstrated that Parliament had the intention to protect health service workers from adverse reactions by others to any disclosure they made in the public interest. The interpretation for which he contended would leave no such gap. There was no reason to adopt such a restrictive approach as would do so. As to "substantial" the same approach ought to be taken to the interpretation of Section 43K(1)(a)(ii) approach as purposively adopted in the context of establishing disability for the purposes of a discrimination claim relating to that disability. It was well established that although the Act provided that a disability could not be said to exist unless the alleged impairment had a "substantial ….adverse effect upon [a claimant's] ability to carry out normal day to day activities" that had been interpreted as a "more than merely trivial" effect.

  1. He supported this approach by reference to Article 10 of the European Convention on Human Rights and Fundamental Freedoms. That provides:

"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers…"

The case ofHeinisch v Germany (28274/08) [2011] IRLR 922 showed that a whistle blower was entitled to protection under Article 10. A geriatric nurse in a state-owned nursing home was dismissed without notice when the home became aware that she had made a complaint about a criminal shortage of staff at the nursing home. The European Court of Human Rights held that there had been a violation of Article 10 of the Convention because it was not "necessary in a democratic society" to interfere with the Claimant's right to freedom of expression in those particular circumstances. In Matuz v Hungary (C73571/10) [2015] IRLR 74 a journalist complained to the President of the state television company at which he worked about censorship of a programme he edited. He published a book on alleged censorship, whereupon he was summarily dismissed. The European Court held that his freedom of expression had been violated. The interference had not been necessary in a democratic society, even though it was authorised by law. A point as to the effect in domestic law in respect of employment had arisen under Article 10 in the case of Bates Van Winkelhof v Clyde and Co. LLP [2014] UK SC 32 before the Supreme Court. It was unnecessary, in the event, to determine the point though Baroness Hale noted it at paragraphs 41 and 43 in terms which were far from dismissive of the point.

  1. Mr Milsom drew from those decisions that freedom of expression necessarily incorporates a right to make disclosures in a workplace context: that where a person may be vulnerable to detriment in the event that he exercises that right, Article 10 requires him to be protected from adverse consequences. All those in the workplace who are economically dependant on an "employer" are vulnerable to detriment in the event of whistle blowing disclosure. Accordingly, the protection of their right to freedom of expression requires a right to claim. Accordingly, if protection were not offered to doctors in training it would amount to a breach of their Article 10 rights. Public sector workers were entitled to that protection (see [Kudeshkina v Russia](http://www.bailii.org/cgi-bin/markup.cgi?doc=/eu/cases/ECHR/2009/360.html&query=title+(+Kudeshkina+)+and+title+(+v+)+and+title+(+Russia+)&method=boolean) [2009] ECHR 29492/0538). Section 3 of the Human Rights Act bound the Employment Tribunal as a public body to read and give effect to the Employment Rights Act 1996 so far as possible to give effect to the rights secured by Article 10. The interpretative principles were those expressed in Ghaidan v Godin-Mendoza [2004] 2 AC 557.
  1. Freedom of expression under the Convention constituted a general principle of European Union law, and the EU Charter was engaged whenever Convention rights were at stake. In Fenoll v Centre D'aide Par le Travail "La Jouvene" [2016] IRLR 67 it was held that a disabled person admitted to a work rehabilitation centre might be within the definition of "worker" for the purposes of the autonomous definition of that word within EU law. The Claimant should thus be seen in that capacity vis a vis HEE.
  1. Mr Milsom's submissions orally were not to the effect that there was a free-standing remedy under Article 10, but rather that it underpinned the width which should be given when reading Section 43K purposively, such that (see paragraphs 57 and 58 of the judgment of Mummery LJ in X v Y it was incumbent upon an Employment Tribunal to read the legislation in a way compatible with the Convention. A wide latitude should be given to what was possible: see Ghaidan v Godin-Mendoza at paragraphs 41, 118 -119 and 121. Protection here could be afforded by reading "substantial" as "no more than trivial". A remedy would then be provided for a situation in which someone had a worker-like status, which was what Parliament intended, and this would give Article 10 effect.
  1. Mr Siddall complained that Mr Milsom's arguments sought too much. Parliament had not created a free-standing regime which protected any disclosure made in the public interest by anyone. By inserting the provisions in Part IV of the Employment Rights Act 1996 it had afforded protection against disclosure firmly in the context of the employer/employee relationship and no other, except as extended in specific instances. In his judgment in Fecitt & Others v NHS Manchester *[2012] ICR 372,* Elias LJ considered the argument that the purposive approach to be taken to the Act should be such that any act or failure to act by an employer would found a claim if that act undermined the protection to which a worker was entitled by the legislation, and which it must have if the public interest were to be secured. As to that, he said at paragraph 58 (in words with which Davis and Mummery LJJ agreed) that:-

"In my judgment, this goes far beyond the legitimate role of the Court in construing legislation. The purpose of a statute has to be gleaned from its language. Parliament has plainly chosen to protect whistleblowers from the acts and deliberate omissions of the employer. If the reason for the adverse treatment is the fact that the employee has made a protected disclosure, that is unlawful. But it is striking that no obligation is imposed on employees not to take action against the whistleblower in these circumstances, particularly since they are made so liable with respect to the discrimination legislation.

59. Mr Allen is asking the Court to remedy the lacuna he says exists in the legislation by extending the primary liability of the employer. In my judgment, that involves giving a wholly distorted meaning to the words which Parliament has employed … His premise, namely that Parliament must have intended to protect workers from the adverse effects of acts of victimisation by fellow workers is not in my view sustainable given the language that Parliament has used. Nor does the long title help since it merely says that the Act is to protect whistleblowers; it gives no indication as to how full that protection is intended to be."

  1. Mr. Siddall pointed out that the protection was not so general as to protect freedom of expression of any kind. A disclosure had to qualify within Section 43B. It had to be made to one of a carefully spelt out list of recipients. The statute did not prevent detriment being caused to an employee by the actions of those who were not employers (or, now, by amendment of 47B by a fellow worker or agent of the employer with the employer's authority). The focus was on protecting a whistleblower against detrimental treatment by reason of making the disclosure by those in a proximate employment relationship. The relationship covered all those who were working under a contract of employment, or were "limb (b)" workers within the meaning of Section 230(3) ERA. Section 43K was an extension of those categories, beyond the categories of those who could claim for other employment rights, and in particular in respect of discrimination under the Equality Act 2010. It did so by identifying a number of categories, each of which was separate from the others. Amongst them were four categories which concerned the position of particular groups of people who worked for the health services. It did not provide that health workers generally were to be covered, whatever the relationship they might have had with a health body. The categories were specific, and to be interpreted within the bounds of the wording of each. In line with the approach in Fecitt, the wording had to be addressed as it was. There was no reason arising from the purpose of the legislation generally to conclude that words deliberately chosen by Parliament should be ignored, as the argument of Mr Milsom sought to do in respect of the opening words of Section 43K(1). The specific reference to particular health workers did not, as Mr Milsom submitted, imply the inclusion of trainee doctors insofar as their relationship was with HEE. Whereas in the Equality Act those in the position of a qualifying body were subject to specific provisions permitting claims against them for discrimination, any similar provision was notably absent from 43K. The fact that 43K(1)(cb) was drafted as it was demonstrated that Parliament had not intended that junior doctors in the position of the Claimant would have a right to complain about detriment caused by HEE with whom they had no relationship of employment, whether as employee in the conventional sense or as a "limb b" worker, and against whom they could only maintain an action if their relationship with it was specifically identified as one of those categories to which protection was extended under 43K. The focus should be on work, since that was the context in which the protection under 43K was placed.
  1. Section 43K(1)(a)(ii) required a focus on the contract under which the complainant is or was engaged to do the work. Here, that contract was with Lewisham. The determination of whether the terms were in practice substantially determined by Lewisham was an issue of fact for the Tribunal. Its decision could not be said to be perverse. In any event, "substantially" meant what it would in normal usage. It was used in a binary context - to determine whether the Claimant, on the one hand, or the person for whom the work was done, or the person supplying the worker to that end user, or both between them, on the other was the party most responsible for the terms and conditions under which the Claimant provided his services.. In that context, it made no sense to interpret "substantially" as "more than merely trivially".
**Discussion**
  1. I accept that a purposive approach should be taken to interpreting the public interest disclosure provisions in the Employment Rights Act. But I also accept that this does not mean that a Court is entitled to ignore the words of the legislation by thinking that the purpose would better be served if they did not appear. Everyone might agree that discrimination is a social evil. It is proscribed by international instrument. That does not, however, have the consequence that the Equality Act must be taken to apply to any situation in which it might be said that one person discriminates against another. The circumstances in which it may occur are carefully defined. In the same way, the prohibition against detriment or dismissal for making a public interest disclosure (often regarded as analogous to discrimination) is set out with particularity in the Statute. Much of Mr Milsom's argument was an appeal to the generality with which Article 10 would suggest that individuals had to be free to speak. However, he was constrained to accept in the course of submissions that he could not contend for a general principle that a person making a public interest disclosure should be protected against all or any detriment, whatever his relationship with the person treating him detrimentally.
  1. I accept Mr Siddall's description of Section 43K as providing a list of particular extensions of the meaning of worker. Broadly they may be seen as follows. By sub-section (1)(a) section 43K makes provision for agency workers, who though not employees nor workers in most cases would be placed in a similar position to those of employees or limb (b) workers in respect of the work they were engaged to do. Arden LJ saw it that way in Sharpe. Subsection 1(b) is concerned with contractors; (ba) - (cb) provide for diverse categories of persons involved with health service bodies, and (d) is concerned with a person who might be such as an intern, or possibly on a sandwich course, though both these suggestions are hesitant ones, or someone who could be described as an "atypical worker". But the fact that these circumstances are defined by separate example, coupled with the nature of those examples, shows that there is no general principle which unites them, which might by extrapolation extend to someone in the position of the Claimant.
  1. One feature, however, does cover all: that is that they cannot be a worker as defined by Section 230(3). Mr Milsom had no satisfactory explanation for the presence of those words. The list that follows in 43K(1)(a)-(d) is subject to those introductory words. His submission that the words might be included as mere introductory expression or to provide "belt and braces" does not suffice, for if a person is within 43K(1)(a) and is also an employee or a limb (b) worker, there is no need to extend the meaning to include him. If the section had been intended to add a category of employer against whom a person might act in addition to others who were his employer, there would be no need for the words "who is not a worker as defined by Section 230(3)". They were intended to have a meaning. They have no additional force if construed as Mr Milsom would wish. Construed as Mr Siddall suggests, they apply a policy to the effect that those who are workers within Section 230(3) should adopt the route of complaint set out in Section 43C – 43H but have no, and need no, additional protection against those who are more peripheral to their employment. There is no reason in policy to include those who are tangential to the work which is relevant.
  1. Accepting these submissions, as I do, does no violence to the principle of purposive construction. The purpose of this part of the Act is to extend the meaning of worker to a limited category of other relationships. It is, plainly, to give them a route to remedy which they might not otherwise have (the agency worker, for instance, is likely to be neither an employee nor worker in respect of the end user under whose control the work would normally be performed). That purpose is fulfilled. It does not need the relevant introductory words to be written out.
  1. I accept, too, that the inclusion of the reference to trainee mid-wives demonstrates, together with the references to others with particular relations to health service bodies, that the draughtsman of the statute had in mind a variety of specific health service relationships. The omission of specific reference to the relationship of a doctor with HEE (or to the deaneries which preceded HEE) therefore is strongly suggestive that Parliament deliberately did not intend to include it.
  1. As to the word "substantially" the word (otherwise undefined) takes its colour from the context. The context of 43K(1)(a)(ii) asks the Tribunal to determine whether the Claimant on the one hand, or other parties, on the other, substantially determined the terms on which he is or was engaged to do the work – i.e., adopting the approach in Sharpe, the contract. In this context, "substantially" means "in large part". Given that the choice is between (a) and (b), the question is in effect asking which determined those terms more than the other. This gives no room for a decision that it means "more than trivially". It can be tested in this way. If it meant "more than trivially", and the Claimant had been responsible for a small minority of the terms sufficient to satisfy the "more than trivial" approach, could it be said that the terms had been substantially determined by him, and not by the person for whom he works or by the third person, who was responsible for the balance of the terms? The answer is obviously not. The expression appears in a clause inviting a comparison.
  1. I accept that the substantial determination may be by more than one person. The sense is most likely to be that the person for whom the Claimant works and the third person who has supplied his services are combining jointly: but it may be that they do not have to be. Nonetheless, to found liability the employer under 43K(2)(a) has substantially to have determined the contractual terms. Though HEE here plainly made the decision as to where the Claimant was to work, it kept his training under review, and supplied much of his salary, this did not mean that the Tribunal was obliged to hold that it had determined "the terms on which [the Claimant]… was engaged to do the work", let alone done so substantially.
  1. The work referred to before me was work as a specialist registrar at the Queen Elizabeth Hospital. That was performed under contract with Lewisham. The disclosures he made arose out of and in relation to that work. In my view, the relationship which the Claimant had with HEE was a relationship distinct from the relationship of employee/employer which he had with Lewisham. If regarded in isolation from the work he did for Lewisham, there is nothing about his relationship with HEE which could fall within the terms of the Act. The Claimant had no employment with HEE. He was not a worker in respect of HEE. HEE did not introduce or supply him so far as their relationship was concerned, but only in respect of the work he did for Lewisham. In short, the detriment of which he complained against HEE was said to be occasioned in the course of his relationship with HEE, and not in respect of the work he did for Lewisham: and in this respect the position of HEE was little different from any third party who might have acted detrimentally towards him as a whistleblower. So viewed, it could not be covered by the general terms of the Act, any more than on the view I have taken of the interpretation of Section 43K it is covered by the specific wording.
  1. The appeal to Article 10, whether made part of EU law by route of the Charter, does not assist. In neither Germany nor Hungary had the State provided any legislative protection against mistreatment of those who blew the whistle. It is well within the margin of appreciation to be accorded to a member state that it should enact careful and detailed provisions as the UK Parliament has done in enacting Part IV of the Employment Rights Act.
**Conclusion**
  1. Forensically attractive though it may be to describe an absence of protection in particular circumstances as a "lacuna" it is better viewed in this case, as it was in Fecitt, as Parliament carefully delineating the extent to which protection against detriment for whistle blowing should be afforded. It determined that protection should not extend so far as to cover the relationship of the Claimant with a body such as HEE. He was not its employee, nor its worker. He was at the material time a worker for Lewisham. In so far as his complaint arose out of that work he could not, therefore, claim protection under Section 43K. If forensic illustrations are to be drawn this is not a case of a gap within the boundaries of protection, but a case in which the relationship falls well outside those boundaries.
  1. The appeal is dismissed.

Published: 10/03/2016 21:19

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