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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 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 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 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 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 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 does this mean? 

Whistleblowing protection did not initially apply to police officers until the Police Reform Act 2002 which added police officers to the extended definition of worker in s43K of 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 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.