Hill Dickinson has acted for the successful party in the Employment Appeal Tribunal which yesterday gave judgment in a case addressing the capacity of bodies against whom claims under the Public Interest Disclosure Act can be made.

Dr Day –v- Lewisham and Greenwich NHS Trust & Health Education England

The claimant entered into a training agreement with Health Education England (HEE). In the second year of his medical training, he was employed by Lewisham and Greenwich NHS Trust (Lewisham). 

Having resigned from the training programme, the claimant brought claims of whistleblowing detriment against Lewisham and HEE. Such claims can only be brought against an employer, as defined by the Employment Rights Act 1996.

At a preliminary hearing in February 2015, the employment judge held that HEE did not fall within the definition of ‘employer’ for the purposes of the relevant legislation. The judge accepted that HEE’s role is to facilitate training. For this reason, HEE was discharged from the proceedings. The claim against Lewisham continues.

The claimant appealed this decision on the basis that the Employment Tribunal erred in its interpretation of the law.

The appeal hearing took place in February 2016 before His Honour Mr Justice Langstaff who dismissed the claimant’s appeal and made the following conclusion:-

'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 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.…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.'