Was a doctor protected under whistle blowing law?

A recent Employment Appeal Tribunal judgment for the case of Day v Lewisham and Greenwich NHS Trust, and Health Education England, focused its attention on who a whistleblowing claim can be made against. Whistleblowing is the act of making a disclosure to someone about wrongdoing that is occurring in the workplace. A worker is protected from being subject to detriment because they have ‘blown the whistle’ meaning that their employer is not able to treat them badly because of it. Health Education England (HEE) organised the placements that the junior doctor was to undertake; one such placement was with Lewisham and Greenwich NHS Trust. HEE paid a proportion of the junior doctor’s salary and were responsible for regularly reviewing his performance and development. The doctor made a number of patient safety disclosures to both the Trust and to HEE. After the disclosures he claimed that he was treated detrimentally by HEE. He brought a claim for detriment against both HEE and the Lewisham and Greenwich NHS Trust. However, the claim against HEE was not allowed to proceed because the relationship required between the parties in order for protection to apply did not exist; the doctor was not HEE’s worker. In this case, the doctor’s terms of employment were set by the Guide for Post Graduate Specialty Training in the UK, which was not determined by HEE. The doctor appealed the decision. However, the Employment Appeal Tribunal agreed with the original tribunal in that the doctor was not HEE’s employee, nor was he their worker. The relationship between the two fell outside of the scope of protection provided to all qualifying protected disclosures, as it was distinct from the relationship of employee/employer which the doctor had with the Trust. This case highlights the contractual relationship of ‘worker’ or ‘employee’ which must exist between the parties if the individual is to be able to make a claim under whistleblowing law. Even though HEE paid a portion of the doctor’s salary, this was not enough to establish that there was any kind of working relationship between it and the doctor.

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