Whose Protected. Section 43K of the Public Interest Disclosure Act.

43KA ERA Application of this Part and related provisions to police

43K. – (1) For the purposes of this Part "worker" includes an individual who is not a worker as defined by section 230(3) but who-

(a) works or worked for a person in circumstances in which –

(i) he is or was introduced or supplied to do that work by a third person, and

(ii) the terms on which he is or was engaged to do the work are or were in practice substantially determined not by him but by the person for whom he works or worked, by the third person or by both of them,

(b) contracts or contracted with a person, for the purposes of that person's business, for the execution of work to be done in a place not under the control or management of that person and would fall within section 230(3)(b) if for "personally" in that provision there were substituted "(whether personally or otherwise)",

[(ba) works or worked as a person performing services under a contract entered into by him with [the National Health Service Commissioning Board] [under [section 83(2), 84, 92, 100, 107, 115(4), 117 or 134 of, or Schedule 12 to,] the National Health Service Act 2006 or with a Local Health Board under [section 41(2)(b), 42, 50, 57, 64 or 92 of, or Schedule 7 to,] the National Health Service (Wales) Act 2006]…,]

[(bb) works or worked as a person performing services under a contract entered into by him with a Health Board under section 17J [or 17Q] of the National Health Service (Scotland) Act 1978,]

(c) [works or worked as a person providing services] in accordance with arrangements made-

(i) by [the National Health Service Commissioning Board] [[under section 126 of the National Health Service Act 2006,] or ] [Local Health Board] under [section 71 or 80 of the National Health Service (Wales) Act 2006], or

(ii) by a Health Board under section [2C, 17AA, 17C,] … 25, 26 or 27 [or 26] of the National Health Service (Scotland) Act 1978,…

[(ca) …]

[(cb) is or was provided with work experience provided pursuant to a course of education or training approved by, or under arrangements with, the Nursing and Midwifery Council in accordance with article 15(6)(a) of the Nursing and Midwifery Order 2001 (SI 2002/253), or]

(d) is or was provided with work experience provided pursuant to a training course or programme or with training for employment (or with both) otherwise than-

(i) under a contract of employment, or

(ii) by an educational establishment on a course run by that establishment;

and any reference to a worker's contract, to employment or to a worker being "employed" shall be construed accordingly.

(2) For the purposes of this Part "employer" includes-

(a) in relation to a worker falling within paragraph (a) of subsection (1), the person who substantially determines or determined the terms on which he is or was engaged,

[(aa) in relation to a worker falling within paragraph (ba) of that subsection, [the National Health Service Commissioning Board, or the] Local Health Board referred to in that paragraph,]

[(ab) in relation to a worker falling within paragraph (bb) of that subsection, the Health Board referred to in that paragraph, (bb) in relation to a worker falling within paragraph (c) of that subsection, the authority or board referred to in that paragraph, and

[(ba) …]

(c) in relation to a worker falling within paragraph (d) of that subsection, the person providing the work experience or training.

(c) In this section, "educational establishment" includes any university, college, school or other educational establishment.

[(4) The Secretary of State may by order make amendments to this section as to what individuals count as “workers” for the purposes of this Part (despite not being within the definition in section 230(3)).

(5) An order under subsection (4) may not make an amendment that has the effect of removing a category of individual unless the Secretary of State is satisfied that there are no longer any individuals in that category.]]

 

Explanatory Note

PIDA deliberately extended the scope of its protection beyond employees to persons who are “workers”. Under s230(3) ERA, a worker includes an employee (in the traditional sense) and a person who personally undertakes to perform work, under a contract, for another party who is not a client or customer of a profession or business carried on by the individual. In addition to these categories of individual, PIDA contains specific protections for certain agency workers, homeworkers, NHS practitioners, nurses and midwives in training, and trainees.

(a) Agency workers (s43K(1)(a) ERA)

This covers agency workers, where the agency introduces them to or finds them the post and the terms of employment are substantially determined by the agency or the organisation where he performs the work.  In this case, the “employer” will include the person who substantially determined the terms of engagement (see s43K(2)(a) ERA): in practice, this will normally be the organisation on whose instructions the person performs the work.  However, under PIDA a worker may have more than one employer: see for example the tribunal decisions in Hayes v Reed Social Care & Bradford MDC (where the agency was the ‘classic’ employer and Bradford MDC was also an employer for PIDA purposes as it had substantially determined the terms of the engagement) and also Hittinger v St Mary’s NHS Trust & Imperial College.

This provision is wide enough to cover a case where there is no direct contractual relationship, e.g. because of the intercession of a service company (Croke v Hydro Aluminium Worcester Ltd [2007] ICR 1303). In McTigne v University Hospital Bristol NHS Foundation Trust [2016] IRLR 742, the EAT held that: (1) the extension can apply where the individual has a formal contract of employment with the agency (the “supplier”) but the allegations are made against the end user (the “receiver”); and (2) it is irrelevant whether either or both of the supplier and receiver “substantially” determine the terms, as long as the individual does not; the effect is that most ordinary forms of agency working are covered by s43(1)(a) ERA. Where both “employer” parties set terms, it is not a question which does so more substantially, but whether the party being proceeded against did so to an extent categorisable as “substantially” (Day v Health Education England [2017] EWCA Civ 329, [2017] IRLR 623).

One potential limitation is that, on the basis that the reference to “terms” means contractual terms, the extension cannot apply if there is no contract at all: in Sharp v Bishop of Worcester [2015] EWCA Civ 399, [2015] IRLR 663, [2015] ICR 1241, there was no contractual relationship between a parish rector and his bishop. However, in Day v Health Education England, Elias LJ suggested that once such a relationship is shown, it is open to a tribunal to take a broad brush approach “having regard to all the factors bearing upon the terms on which the worker was engaged to do the work”.

In Day v Health Education England, a doctor in training wished to bring whistleblowing proceedings against Health Education England (“HEE”), the national training body, which he alleged had subjected him to detrimental treatment for having made complaints about safety matters at one of the hospitals to which he had been assigned. The key question was whether he came within the extended definition of worker in s43K(1)(a) ERA and whether, as he worked for the hospital, HEE could be the “third person”. The Court of Appeal held that it could not have been Parliament’s intention that a worker should not be protected because of the existence of some other work relationship with someone else.  Adopting a purposive interpretation of the legislation, it was therefore necessary to read in the words “an individual who as against a given respondent is not a worker as defined in section 230(3)”.

In Gilham v Ministry of Justice [2017] EWCA Civ 2220, the Court of Appeal upheld the EAT’s decision that a district judge did not qualify as a “worker” for the purposes of bringing a claim of whistleblowing detriment. While it was accepted that the fact that a person is an officeholder does not necessarily rule out also being an employee or a worker, the court decided that there was no contractual relationship between a judge and the Ministry or the Lord Chancellor. While some aspects of the judge’s terms and work patterns looked like a contractual arrangement, most of the factors pointed the other way. The Court also considered whether the claimant needed the protection of the domestic whistleblowing legislation in order to protect her right to freedom of expression under Article 10 of the European Convention on Human Rights (“ECHR”). The Court held that, while Article 10 was engaged, the existing legislation surrounding judicial office-holding already provided sufficient protection (e.g. through other avenues of complaint including recourse to the ordinary courts).

Public Concern at Work intervened in the case to argue that the non-inclusion of judges in the definition of workers breached the prohibition of discrimination under Article 14 ECHR. However, the Court held that judicial office-holding was not a protected “status” under Article 14 and in any event Parliament was entitled to exclude judges from the definition.

A member of a limited liability partnership (LLP) is also a “worker” under s203 ERA for the purposes of whistleblowing protections: Bates van Winkelhof v Clyde & Co [2014] IRLR 641 and Wilsons Solicitors LLP v Roberts [2018] EWCA Civ 52.

(B) Homeworkers (s43K(1)(b) ERA)

This covers a homeworker, namely an independent contractor who provides services whether personally or otherwise from their home. As with s43K(1)(b) ERA, there must however be a contractual relationship (per Sharp v Bishop of Worcester, above).

 

(C) Certain NHS practitioners (s43K(1)(ba)(c) ERA)

This provision applies to NHS practitioners providing their services under various enactments specifically enumerated above.

The Employment Rights Act 1996 (NHS Recruitment – Protected Disclosure) Regulations 2018 (which came into force on 23 May 2018) extend whistleblowing protection to job applicants in the NHS. The Regulations set out the legal obligation on an NHS employer not to discriminate because of a protected disclosure (Regulation 3). An applicant has a right of complaint before an employment tribunal (Regulation 4). Regulation 5 provides that a complaint must be brought within three months from the date of the conduct to which the complaint relates but the tribunal may consider a complaint brought out of time if it is just and equitable to do so (the relevant dates are set out in Regulation 5(3)). Remedies available are: (a) a declaration that Regulation 3 has been contravened; (b) compensation (in such amount as the tribunal considers “just and equitable” per Regulation 7); and (c) a recommendation that the NHS employer takes steps to reduce the adverse effect on the applicant. Alternatively, a contravention of Regulation 3 is actionable as a breach of statutory duty (Regulation 8).

(D) Nurses and midwives in training (s43K(1)(cb) ERA)

This provision covers nurses and midwives provided with work experience provided pursuant to a course of education or training approved by, or under arrangements with, the Nursing and Midwifery Council (in accordance with article 15(6)(a) of the Nursing and Midwifery Order 2011).

(E) Trainees (s43K(1)(d) ERA)

In broad terms, this provision covers those individuals who are not employees but are provided with work experience as part of a training course or are provided with training for work (or both), save where the course is run by a university, college, school or other educational establishment.

(F) Crown employees (s191 ERA)

The right not to be subjected to unlawful detriment for making a protected disclosure also extends to Crown employees (s191 ERA 1996), save where the employment is for the purposes of the Security Service, the Secret Intelligence Service or the Government Communications Headquarters (s193 ERA).

DEFINITIONS

“contract of employment” : ERA s.230(2)

“employer” : subs. 2 and ERA s.230(4)

“worker” : subs. 1 and ERA s.230(3)