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Are workers excluded from claims brought against organisations other than their employer?

Legislation protects workers from detriment or dismissal after they have made a protected disclosure.  In order to be protected the individual making the claim must be a "worker".

There is a standard definition of worker which is used in legislation including the Working Time Regulations, National Minimum Wage Regulations and the Employment Rights Act.  However, whistleblowing legislation allows for an extended definition of worker which covers individuals who work for a person in circumstances where he was supplied to that person by a third party, and where the worker's terms of engagement are substantially determined by the person for whom the individual works, by the third party or by both of them.  Section 43K of the Employment Rights Act states that the extended definition of worker includes "an individual who is not a worker by virtue of section 230(3)".  Section 230(3) sets out the widely used standard definition.

The Claimant in Day v Health Education England & Others was a doctor who was placed with an NHS Trust by Health Education England, the statutory body responsible for education, training and workforce planning for NHS staff in England.   The NHS Trust became Dr Day's employer, Dr Day's relationship with HEE being governed only by a training contract.

Dr Day made a number of disclosures regarding under staffing affecting patient safety to both the Trust and to HEE.  He subsequently raised whistleblowing claims against both the NHS Trust and HEE. Dr Day argued that he was a worker for HEE by virtue of the extended definition - HEE acting like an agency in supplying him to the NHS Trust.  The Employment Tribunal found that the extended definition did not cover Dr Day because HEE did not substantially determine his terms of engagement, instead the relationship was a training relationship which subsisted along side the employment relationships with the Trusts that employed Dr Day during his training.

The EAT dismissed an appeal.  They found no error in the Tribunal's decision and also noted that the extended definition only applies to workers who do not fall within the standard definition.  As Dr Day was a worker for the NHS Trust under the standard definition that precluded him from being a worker for any other party.

An appeal then came before the Court of Appeal.  On this occasion the Court found in favour of Dr Day.  The Court found that the words preventing Dr Day being a worker for both the NHS Trust and HEE (at section 43K referred to above) could not be taken literally.  The Court found that the extent of that exclusion needed to be limited so that claims could be made against both a party supplying a worker and the end user, or to a second separate employer.  The Court also found that the Tribunal had wrongly considered whether HEE substantially determined Dr Day's terms of engagement and the case was referred back to the Tribunal to reconsider.

The Court interpreted the exclusion from reliance on the extended definition of worker as applying only in circumstances where there is one "employing" party involved.  Where an individual already qualifies as a worker for a single employing party there is no need to then rely upon the extended definition.  The Court's interpretation of the exclusion avoids a scenario where an individual is prevented from qualifying as a worker for one employing party simply because he was a worker in second job elsewhere - which could be totally unrelated.