FREE CHAPTER from ‘NHS Whistleblowing and the Law’ by Joseph England

CHAPTER TWO

WHO CAN BE A WHISTLEBLOWER?

Whistleblower’ is not a term used by statute. Instead, a person who makes a protected disclosure is who statute defines and commonly such a person is often referred to as a whistleblower. This chapter will look at the category of people that statute deems eligible to make a protected disclosure and who can therefore rely upon the protection of PIDA 1998. The definitions or worker and employee will be considered, as well as new regulations specific to job applicants.

Like much of statutory employment law, a Claimant is only able to make a claim in a tribunal to seek the protection of PIDA 1998 if they satisfy the applicable legislative criteria. Two categories apply: workers and employees. Both can make a protected disclosure pursuant to s.43A ERA 1996 and both can bring a claim that they have suffered a detriment as a result pursuant to s.48(1A) ERA 1996, but only an employee can bring a claim that they have been dismissed as a result of a protected disclosure pursuant to s.103A ERA 1996. A worker who wants to claim about their dismissal may nevertheless be able to claim a very similar remedy as if they had made a claim under s.103A ERA 1996, as discussed below in the Liability chapter.

For many, their status will be easily identified, uncontroversial and it will be identified in their contract. Arguments over employment status emerge when the individual is not expressly identified as a worker or employee but claim to be one of these to avail themselves of statutory protection.

Worker in this context is defined in two places: s. 230 ERA 1996 and s.43K ERA 1996.

s.230 ERA 1996 provides:

s.230 Employees, workers etc

(1) In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.

(2) In this Act “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.

(3) In this Act “worker” (except in the phrases “shop worker” and “betting 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 express) 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;

and any reference to a worker’s contract shall be construed accordingly.

(4) 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.

(5) In this Act “employment”—

(a) in relation to an employee, means (except for the purposes of section 171) employment under a contract of employment, and

(b) in relation to a worker, means employment under his contract;

and “employed” shall be construed accordingly.

[(6) This section has effect subject to sections 43K[, 47B(3) and 49B(10)] [, 49B(10) and 49C(12)]; and for the purposes of Part XIII so far as relating to Part IVA or section 47B, “worker”, “worker’s contract” and, in relation to a worker, “employer”, “employment” and “employed” have the extended meaning given by section 43K.]…”

s.230(3)(a) covers employees, giving them the additional status of workers.

s.230(3)(b) has proven to be a lot more controversial and in the raft of case law that has developed to consider its meaning, employment status pursuant to this category is “conveniently described as a limb (b) worker” (Pimlico Plumbers Ltd & Anor v Smith [2018] UKSC 29). Much of the recent case law in this area has emerged from disputes from individuals with a lot of flexibility in their work and from issues from the ‘gig economy’ and zero hour contracts etc. The detail of this area is not explored here because of the more relevant application of s.43K ERA 1996, but recent and authoritative guidance can be gleamed from the June 2018 judgment of the Supreme Court in Pimlico Plumbers and the SC’s previous observations in Bates van Winkelhof v Clyde& Co LLP [2014] UKSC 32 and Autoclenz Ltd v Belcher [2011] UKSC 41.

s.43K ERA 1996 is a section created only for whistleblowing claims and it expressly extends the meaning of worker beyond s.230 in certain circumstances, therefore broadening the protection available. It provides:

43K Extension of meaning of “worker” etc for Part IVA]

[(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] [under [section 83(2), 84, 92, 100, 107, 115(4), 117 or 134 of, or Schedule 12 to,] the National Health Service Act 2006 or with a Local Health Board under [section 41(2)(b), 42, 50, 57, 64 or 92 of, or Schedule 7 to,] the National Health Service (Wales) Act 2006]. . .,]

[(bb) works or worked as a person performing services under a contract entered into by him with a Health Board under section 17J [or 17Q] of the National Health Service (Scotland) Act 1978,]

(c) [works or worked as a person providing services] in accordance with arrangements made—

(i) by [the National Health Service Commissioning Board] [[under section 126 of the National Health Service Act 2006,] or] [Local Health Board] under [section 71 or 80 of the National Health Service (Wales) Act 2006], or

(ii) by a Health Board under section [2C, 17AA, 17C,] . . . 25, 26 or 27 [or 26] of the National Health Service (Scotland) Act 1978, . . .

[(ca) . . .]

[(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 (SI 2002/253), or]

(d) is or was provided with work experience provided pursuant to a training course or programme or with training for employment (or with both) otherwise than—

(i) under a contract of employment, or

(ii) by 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….”

s.43K(1)(a) has proven to be the most controversial. Its reference to being “introduced or supplied to do that work by a third person” means it will be relevant to agency workers and other similar individuals placed to work in the NHS by a third party. The section and particularly the reference to terms being “substantially determined not by him but by the person for whom he works or worked, by the third person or by both of them” was considered by the Court of Appeal in Day v Health Education England & Ors [2017] EWCA Civ 329. Dr Day was a worker of Lewisham and Greenwich NHS Trust but he also claimed to be a worker of Health Education England due to the organisation of his training. The Court of Appeal considered whether his status as a worker for the Trust precluded him from also being a worker within s.43K of HEE because he claimed HEE had caused him detriments, holding that the dual status was no bar to claiming PIDA protection. Elias LJ highlighted various factors that influenced his view (paras. 15-21), including that this would allow him to have protection against the end-user as well as the introducer.

The conclusion was “reinforced” due to an earlier decision of Simler J sitting then as the President of the EAT in McTigue v University Hospital Bristol NHS Trust [2016] ICR 1156, a case in which your author appeared for the Claimant. As stated by Elias LJ, “that case raised the question whether an end user in an agency arrangement was an employer within the meaning of the extended definition in section 43K” (para. 22) and in answering in the affirmative, Simler J highlighted “an important purpose of s.43K is to extend cover to agency workers in relation to victimisation for protected disclosures made while working at the end user” (para. 27).

Status as an ‘employee’ is defined at s.230(1), quoted above. The definition essentially denotes an individual engaged “under a contract of employment”. Unsurprisingly, the simplicity of this definition has led to much discussion in case law, too lengthy and not necessary for the purposes of this book. For useful guidance, see Autoclenz, Windle v Secretary of State for Justice [2016] ICR 721 and Cox v Ministry of Justice [2016] UKSC 10.

Whatever status an individual holds, a disclosure made via a third party may still constitute a protected disclosure despite not being made directly from the individual. In Cavendish Munro Professional Risks Management Ltd v. Geduld [2010] ICR 325, discussed in greater length in the next chapter, the disclosure was made in a letter sent by the Claimant’s solicitors to his employer. Although the disclosure was held not to be a protected disclosure for other reasons, no problem was seen by the tribunal or EAT due to the Claimant making the disclosure via a third party. How far this principle can extend to other agents of an individual remains to be tested and it may be that solicitors are seen as a clearer and more direct voice of their client than other agents, such as a work colleague or even trade union who may not be ‘instructed’ in the same way.

Beyond s.43K(1)(a), the remaining sub-sections of s.43K are largely fact specific and depend on whether or not the individual has the stipulated contract or relationship with the NHS or related organisation. The sub-sections are intentionally wide in their remit and the combined effect of s.43K(1)(a) will likely incorporate the vast majority of those engaged in some form within the NHS.


NHS Job Applicants

The 2015 Freedom to Speak Up review (discussed in more detail in the final chapter) concluded its chapter on Extending Legal Protection with one emphatic need for improved protection because it found that, “individuals are suffering, or are at risk of suffering, serious detriments in seeking re-employment in the health service after making a protected disclosure” (para. 9.19). After consultation, the report’s recommendation resulted in the Employment Rights Act 1996 (NHS Recruitment – Protected Disclosure) Regulations 2018. These Regulations came into force in May 2018.

As discussed further in relation to ‘who to claim against’ in the Liability chapter, a whistleblower does not have to have raised a concern to the Respondent against whom they seek protection (see also BP v (1) Elstone (2) Petrotechnics [2010] IRLR 558, which highlighted that a “straightforward reading of the words of the statute” (para. 33) denotes that a whistleblower can in theory make a protected disclosure against one employer and then later seek protection from another employer on the basis of the earlier disclosure).

Job applicants however, may be left without protection from their new prospective employer because they will not be the new employer’s worker at the point of application (see the discussion of this potential “lacuna” at Elstone para. 37). For NHS job applicants, the 2018 Regulations therefore seek to obviate this problem. The Regulations make this protection express in the context of NHS employers (as defined by Reg.2 and s.49B ERA 1996) and go further by not requiring the applicant to have actually made a protected disclosure, but affording protection under Reg.3 in a broader sense based on perception:

Prohibition of discrimination because of protected disclosure

3. An NHS employer must not discriminate against an applicant because it appears to the NHS employer that the applicant has made a protected disclosure.”

If there has been discrimination, an applicant can apply to an employment tribunal under Reg.4 and obtain a declaration under Reg.6, “just and equitable” compensation under Regs. 6-7 and a recommendation for action to obviate or reduce the effect of the discrimination under Reg.6. There is a further opportunity to apply for a court for action and damages “which may include compensation for injured feelings” at Reg.8, discussed below.

The time limit within an employment tribunal for bringing a claim is 3 months, starting from a range of dates depending on the category of action taken by the prospective employer and including an express provision that in the case of a decision not to employ or appoint an applicant that the 3 months begins on “the date that decision was communicated to the applicant” (Reg.5(3)(a)). Any extension to this time limit is under the “just and equitable” test familiar from the EA 2010.

Borrowing further from the legislative regime in discrimination law, the burden of proof at Reg.4(2) provides:

If there are facts from which the employment tribunal could decide, in the absence of any other explanation, that an NHS employer contravened regulation 3, the tribunal must find that such a contravention occurred unless the NHS employer shows that it did not contravene regulation 3.”

Further familiar statutory provisions are in the express statement of vicarious liability at Reg.9(1), as well as the potential defence for a respondent at Reg.9(4) if they can demonstrate they took all reasonable steps to prevent a worker or agent from carrying out the discrimination or anything of that description.

The wide scope of remedies at Reg.8 will be unfamiliar to some employment law practitioners because it envisages a remedy in a County Court or High Court. The potential at Reg.8(3)(a) for “such order as [the court] considers appropriate for the purpose of restraining or preventing the defendant from contravening regulation 3” is most likely to be relied upon for an injunction, such as restraining the appointment of an alternative candidate or ordering a fresh recruitment exercise with new decision makers. Concern was expressed during consultation about the burden on respondents having to defend two sets of proceedings, i.e. one in the employment tribunal and one in a civil court, but Reg.8(4)-(5) aims to obviate this difficulty:

(4) Except as provided in paragraph (5), an applicant may not complain to an employment tribunal under regulation 4 and bring an action for breach of statutory duty in respect of the same conduct.

(5) An applicant may complain to an employment tribunal under regulation 4 and bring an action for breach of statutory duty in respect of the same conduct for the purpose of restraining or preventing the defendant from contravening regulation 3.”

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