• Robert Spicer

Whistleblowing: more than one employer can be liable

Worker

More than one employer

Case Day v Lewisham and Greenwich NHS Trust and another (2017) The Times, June 26, Court of Appeal

Facts D was a doctor working for L, having been accepted by London Deanery, the body responsible at the time for training doctors in London. In 2013 the Deanery was taken over by Local Education Training Boards, which have no legal personality and are part of Health Education England (HEE). D brought proceedings against L and HEE, alleging that he had suffered detriments for making protected disclosures related to patient safety. HEE defended the claim on the basis that D was not a worker. The ET found that the claims against HEE had no prospect of success and struck them out. This decision was upheld by the EAT which found that because D was employed by L, he could not claim against HEE. D appealed to the Court of Appeal.

Decision 1. The appeal was allowed.

2. For the purposes of the protection of whistleblowers in the workplace, a person in training might be employed by both the employer with whom he had been placed, and the training body which had made the placement, if the training body had substantially determined the terms under which he worked.

3. When determining who substantially determined the terms of engagement, a tribunal should make the assessment on a relatively broad brush basis having regard to all the factors bearing upon the terms on which the worker was engaged to do the work.

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