Court of Appeal raises prospect of whistleblowing protection for 54,000 Junior Doctors


The Court of Appeal has handed down its decision in Day v Lewisham NHS Trust & Health Education England in which Chris Milsom acted for the successful appellant. The case concerns the status of the relationship between Dr Day (and indeed all 54,000 junior doctors in the UK)  and Health Education England (HEE) who interviews, deploys and makes some contribution towards the payment of doctors-in-training. The EAT concluded that given the existence of a contract of employment between a junior doctor and an NHS Trust there was no room for HEE as a body which substantially determined the terms on which a doctor is engaged (and therefore no scope to pursue a whistleblowing claim against it).

The CA rejected this approach in a judgment which has important implications not only for doctors but for all 865,000 agency workers in the UK. Elias LJ, giving the lead judgment, concluded that s43K envisages the possibility of two employment relationships vis-à-vis both the “introducer” and “the end-user.” Further, despite the insistence in Sharpe v Bishop of Worcester on a contract, the analysis of whether an entity “substantially determines” the terms on which an individual works should not be confined to the contractual terms and conditions. Rather, “the section requires the tribunal to focus on what happens in practice…when determining who substantially determines 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.” This could include the terms governing the relationship between introducer and end-user. The CA remitted the matter to a freshly constituted ET to consider the relationship on the facts in which Chris will continue to act.

Dr Day’s case has been debated in Parliament and reported by the ITN News at Ten,Evening Standard, Daily Mail, Private Eye, ITV, the  Mirror  and New Statesman. It is also one of the most successful instances of crowdfunding: Dr Day has obtained over £140,000 by way of nearly 5000 individual