Joe England successful before Simler J in providing protection for whistleblowers

1st August 2016

McTigue v University Hospital Bristol NHS Foundation NHS Trust (UKEAT/0354/15)

In a judgment handed down last week, the President of the EAT, Simler J, provided important guidance about the scope of protection for ‘whistleblowers’ at s.43K ERA 1996, holding that the Tribunal had erred in denying this protection to Mr England’s client.

The Claimant was engaged in a Sexual Assault Referral Centre (“SARC”) and although she was also employed by a third party agency, she sought protection under s.43K as a worker of the NHS Trust that ran the SARC. This was originally denied by the Tribunal but the question has now been remitted for consideration by a fresh tribunal.

Mr England successfully argued that the Tribunal had erred in its approach of comparing the roles of the Trust and the agency and instead the relevant question was whether the Trust had substantially determined the terms of work. Importantly, Simler J did not accept that the previous President of the EAT, Langstaff J, had intended earlier this year in Day v Lewisham and Greenwich NHS Trust; Health Education England [2016] IRLR 415 to exclude from the scope of protection those who had a worker relationship under s.230 ERA 1996 with an agency. This reinforces the purpose behind s.43K and the “extended” definition of worker it provides to broaden the scope of protection.

The appeal follows what were noted at the sift stage as Mr England’s “well arguable” grounds of appeal and the full judgment can be accessed here: http://www.bailii.org/uk/cases/UKEAT/2016/0354_15_2107.html  

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

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