Protected disclosures: junior doctors not protected from detriment by national training body

The EAT has upheld an employment tribunal’s decision that whistleblower protection under the ERA 1996 does not protect a junior doctor from detriment by Health Education England (HEE), the body responsible for education, training and workforce planning for all NHS staff in England. His relationship with HEE was not covered by the extended definition of “worker” in section 43K(1)(a) of ERA 1996 (the provision which covers agency workers). Although it was arguable that HEE had supplied or introduced the claimant to Lewisham NHS Trust, it had not substantially determined his terms and was therefore not his “employer” under that provision. Neither was he covered by the provisions on work experience placements in section 43K(1)(d).

In any event the claimant could not rely on section 43K because it only covers those who are not otherwise employees or workers under the general definition in section 230(3), and the claimant was an employee of the Trust. (Day v Lewisham NHS Trust and another [2016] UKEAT/0250/15.)