Joe England appeals decision on the scope of protection for whistleblowers provided by s.43K Employment Rights Act 1996

23rd June 2016

Joe England appeared before the new President of the EAT, Simler J, in an important case analysing the scope of protection for ‘whistleblowers’ at s.43K ERA 1996.  Following Mr England’s drafting of what were noted at the sift stage as “well arguable” grounds of appeal, the hearing yesterday considered the scope of protection, including the potential limitation to protection caused by a decision of the previous President of the EAT, Langstaff J, earlier this year in Day v Lewisham and Greenwich NHS Trust; Health Education England [2016] IRLR 415.

s.43K ERA 1996 extends the definition of “worker” to provide a wider definition than in other contexts for those who have made protected disclosures pursuant to the Public Interest Disclosure Act 1998. Mr England represented the Claimant yesterday, who was engaged in a Sexual Assault Referral Centre (“SARC”) and although she was also employed by a third party, seeks protection under s.43K as a worker of the NHS Trust that ran the SARC. The parameters of s.43K and whether or not Day has caused a lacuna in the law are extremely important issues and particularly important topics in light of the current spotlight on ‘whistleblowers’ in the NHS and the failings in protection often exposed through tribunal cases.

Judgment was reserved.

This case builds on Mr England’s representation of Dr Mattu in his long running case against an NHS Trust (see news links below) and subsequent cases involving protected disclosures in and outside the NHS.

https://www.telegraph.co.uk/news/health/news/12141401/Sacked-NHS-whistleblower-handed-1.22m-damages.html
https://www.bbc.co.uk/news/uk-england-coventry-warwickshire-35496603
https://www.dailymail.co.uk/news/article-3432523/NHS-whistleblower-receives-1-2-million-payout-12-year-witch-hunt-doctor-highlighted-fears-patient-safety.html
https://www.youtube.com/watch?v=naaPrJdEBao&feature=youtu.be.
05/02/2016, Trish and Jo at Breakfast - BBC Coventry & Warwickshire - @ about 7.40am (position 1:34).
https://www.bbc.co.uk/programmes/p03g11tj#play @ position 1:39:34