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Who is Protected by PIDA?

WHO IS PROTECTED BY PIDA?

The Public Interest Disclosure Act 1998 (PIDA), the law that protects whistleblowers from negative treatment or dismissal for raising their concerns, is a “day-one” right. This means that a worker or employee can bring a legal claim under PIDA as a whistleblower from the first day of their employment. This differs from other employment rights which require the employee or worker to have two years of service.

The whistleblower protection applies both to employees and ‘workers’.

A worker is someone who personally performs work for another. This work must not be part of the worker’s own limited company in an arrangement where the ‘employer’ is actually a customer or client.

PIDA also contains its own, even wider definition of ‘worker’ which extends protection to many different types of employment relationships and working arrangements. This definition is found in section 43K of the Employment Rights Act 1996 (ERA).

We discuss s43K in more detail and explain who it protects below.

However, there are certain types of people that are not covered by PIDA. These include the genuinely self-employed, trustees, volunteers, non-executives directors etc.

Protect’s civil society campaign, Let’s Fix UK Whistleblowing Law, aims to reform PIDA and expand the scope of who the law protects.

PIDA Extended Definition of Worker (section 43K)

PIDA has a wider scope than other areas of employment law, which means that it provides protection to a wider range of workers. Under section 43K of the Employment Rights Act 1996, the law sets out a number of other types of workers who are protected from victimisation or dismissal when they whistleblow. This includes certain agency workers, homeworkers, NHS practitioners, nurses and midwives in training, and trainees.

Expand the sections below to find out more.

What the law says: 

s43K (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

 

(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

What does this mean?

In brief:

The definition of workers is extended to include agency workers and individuals supplied to work via an intermediary where the agency/intermediary introduces them to or finds them the post and the terms of employment are substantially determined by the agency or the organisation where the worker performs the work.

The “employer” is the person who substantially determined the terms of engagement. In practice, this will normally be the organisation upon whose instructions the person performs the work. However, under PIDA a worker may have more than one employer.

More detail:

This definition is also wide enough to cover a case where there is no direct contractual relationship i.e. where the contract is with the intermediary organisation rather than the organisation where the work is performed. In Croke v Hydro Aluminium Worcester Ltd [2007] ICR 1303, the EAT held that the law covered a worker (Mr Croke) who was the director of his own personal service company, which contracted with an intermediary organisation to supply his services to a client (Hydro). The EAT held that, for the purposes of section 43K, Mr Croke was a worker of Hydro and was therefore protected when Hydro dispensed with his services after he made a protected disclosure

In McTigue 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 (the worker) does not.

This means that most ordinary forms of agency working are covered by s43(1)(a) ERA and therefore protected by PIDA.

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 which can be categorised as “substantially” (Day v Health Education England [2017] EWCA Civ 329).

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. However, in Day v Health Education England, the tribunal judge suggested that once an agency 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”.

What the law says:

s43K (1) For the purposes of this Part “worker” includes an individual who is not a worker as defined by section 230(3) but who-

(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)”

What does this mean?

This covers a homeworker, namely an independent contractor who provides services whether personally or otherwise from their home.

One potential limitation is that, on the basis that the sector refers to “contracts” or being “contracted”, it is unlikely to apply where there is no contract at all.

What the law says:

s43K (1) For the purposes of this Part “worker” includes an individual who is not a worker as defined by section 230(3) but who-

[(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,…

 

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

[(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

What does this mean?

The section refers to those workers who are employed under certain NHS contracts. The NHS contracts listed are standard contracts for self-employed doctors, dentists, ophthalmologists and pharmacists in the NHS. In such cases, the employer is treated as being the relevant Primary Care Trust or Health Board.

What the law says:

s43K (1) For the purposes of this Part “worker” includes an individual who is not a worker as defined by section 230(3) but who-

(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)

 

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

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

What does this mean?

This provision covers nurses and midwives provided with work experience as part of 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).

What the law says: 

s43K (1) For the purposes of this Part “worker” includes an individual who is not a worker as defined by section 230(3) but who-

(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-

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

(3) In this section, “educational establishment” includes any university, college, school or other educational establishment.

What does this mean? 

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), except where the course is run by a university, college, school or other educational establishment.

What the law says: 

s43KA Application of this Part and related provisions to police

(1)For the purposes of—

(a)this Part,

(b)section 47B and sections 48 and 49 so far as relating to that section, and

(c)section 103A and the other provisions of Part 10 so far as relating to the right not to be unfairly dismissed in a case where the dismissal is unfair by virtue of section 103A,

a person who holds, otherwise than under a contract of employment, the office of constable or an appointment as a police cadet shall be treated as an employee employed by the relevant officer under a contract of employment; and any reference to a worker being “ employed ” and to his “ employer ” shall be construed accordingly.

What does this mean? 

Whistleblowing protection did not initially apply to police officers until the Police Reform Act 2002 which inserted the above section 43KA into the Employment Rights Act.

The Court of Appeal has decided that a claim can be brought against the Police Disciplinary Board under whistleblowing law and the body does not have judicial immunity. (Lake v British Transport Police [2007] EQCA Civ 424).

What the law says: 

Section 191 Crown employment.

(1)Subject to sections 192 and 193, the provisions of this Act to which this section applies have effect in relation to Crown employment and persons in Crown employment as they have effect in relation to other employment and other employees or workers.

(2)This section applies to—

(aa)Part IVA (this is the section that sets out the whistleblowing law)

What does this mean? 

Crown Employees are those who are in employment under or for the purposes of a government department or any officer or body exercising on behalf of the Crown functions conferred by a statutory provision. Under section 191 ERA 1996 they are protected by PIDA.

However, this does not extend to service as a member of the naval, military or air forces of the Crown (section 192 ERA) and those employed for the purposes of the Security Service, the Secret Intelligence Service and GCHQ are also expressly excluded from protection (section 193 ERA).

Developments in case law

Junior Doctors

Day v Health Education England [2017] EWCA Civ 329, [2017] IRLR 623

Facts:

Day was a doctor in training who wanted 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 in his case 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 Decision:

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)”.

This confirms that a worker may have two employers under whistleblowing legislation. The Court remitted the case to a fresh tribunal to decide as a preliminary issue whether the training body substantially determined the junior doctor’s terms.

District Judges

Gilham v Ministry of Justice [2019] UKSC 44

Facts:

Clare Gilham was a district judge who raised a number of concerns regarding funding cuts to the justice system, a lack of appropriate and secure court rooms and severe administrative failures. The central issue for the UKSC was whether Judge Gilham should have the whistleblowing protection under the Public Interest Disclosure Act 1998 (PIDA).

The Decision:

The UKSC rejected the suggestion that there was any employment contract, and also held that judges are not crown employees.  However, they should be granted whistleblowing protection in order to give effect to their right not to be discriminated in the enjoyment of their right to freedom of expression under Article 10 and Article 14 of the European Convention of Human Rights.

The Supreme Court held that the definition of worker should be read so as to include judicial office holders.

 

 

 

What's Next?

In May 2021, Protect launched our campaign, Let’s Fix UK Whistleblowing Law. As part of the campaign, we are calling for urgent reforms of PIDA, including the protection of more people.

Many groups of people working in the UK are excluded from whistleblowing legal protection, and we need stronger protections. Protect is calling for the UK’s whistleblowing law to be updated to offer protection to the following 5 groups as a priority: self-employed contractors, non-executive directors & trustees, volunteers, job applicants and workers who are mistaken as whistleblowers.

As well as the priority groups, we also want protection for others who are currently excluded by the law and we have listed them in our Whistleblowing Bill.