Whistleblowing Protection Extended

Since the Public Interest Disclosure Act was introduced in 1998 protection of whistle blowers has always extended beyond employees.

While only an employee can bring an unfair dismissal claim, the Employment Rights Act allows workers to bring claims where they are subjected to a detriment on the ground that they have made a protected disclosure. The definition of worker for those purposes includes “anyone under a contract of employment, or any other contract under which one person provides work personally to another person who is not a client or customer of his own business”. This can extend to agency workers and home workers, and those working on their own account for a wider organisation such as doctors, dentists, and pharmacists working within a surgery or NHS Trust.

The case of Day v Health Education England Court of Appeal, 2017, EXCA Civ 329 appears to widen the scope of protection further. In that case the national training body, Health Education England, placed Dr Day with an NHS Trust and they were found to be potentially liable for a detriment even though the NHS Trust engaged Dr Day and substantially determined his terms (a key part of the test in determining whether an organisation is liable). The case was remitted to the Employment Tribunal to determine whether Health Education England also “substantially determined” Dr Day’s terms and, if so, they will be liable for any detriment. The Court of Appeal has effectively held that it is possible for an individual to have two employers for the purposes of the Public Interest Disclosure provisions.

The case serves as a warning to training providers of their potential liability under whistleblowing legislation. More generally, employers should be aware that a “whistle-blower” can be compensated for any financial loss that flows from a detriment, compensation is uncapped and it can include an award for injury to feelings. It should also be remembered that protection extends beyond the termination of a contract so particular care needs to be taken when providing references.

#whistleblowing #publicinterestdisclosure #workers

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