What’s at stake
Dr. Chris Day is a junior doctor who has been battling through the justice system with a case that could have enormous impact for anyone who is in a “triangular employment” arrangement – anyone who has been recruited by one organisation to work for another. See his CrowdJustice case here.
In January 2014, Chris, a junior doctor training to become a consultant in intensive care, knew that the doctor/patient ratios in the wards where he worked were below the accepted safe level. Things came to a head one night when he was left in charge of an intensive care ward. Two doctors failed to turn up to supervise two A&E wards and Chris was asked to keep an eye on those wards as well. He didn’t feel this was safe and told the hospital that there weren’t enough doctors in the intensive care and A&E wards.
The events that followed led to him losing his training contract and his chance to become a hospital consultant.
Day’s suit (Day v (1) Lewisham and Greenwich NHS Trust and (2) Health Education England) claims compensation from both the NHS Trust (where Day was working) and Health Education England (HEE, the organisation that terminated his training contract). Before the case could be heard in the Employment Tribunal, HEE asked for a preliminary hearing in which it argued that HEE was not covered by the extended definition of an “employer” in section 43K of the Employment Rights Act 1996. In March 2016, The Employment Tribunal and the Employment Appeal Tribunal both decided that HEE was not liable to Chris Day.
The latest
Chris Day had his day in the Court of Appeal last week. It definitely lived up to expectations. The BBC filmed him and us, his legal team, crossing the Strand to the Royal Courts of Justice. The courtroom was packed. Chris’s supporters and his wife and parents were there. So too were journalists from the BBC and Daily Mail. The remaining seats seemed to be mostly taken by a large number of junior doctors.
The most striking thing about the hearing was how much easier it is to follow the law when it is explained by three really outstanding QCs and three Court of Appeal judges. For those who enjoy a good legal argument this was an intellectual feast.
The charity Public Concern at Work (PCaW) was so alarmed by the Employment Appeal Tribunal’s interpretation of the law in Chris’s case that it decided to intervene in the Court of Appeal – hence the third QC. PCaW argued that if the EAT’s judgment in Chris’s case is not overruled it will have a chilling effect on whistleblowing more generally, far and beyond the NHS and junior doctors.
PCaW argued that many people are supplied by their employer to work for another organisation. Agency workers are a good example, but there are many others who will be affected. People are often recruited by one company to work for other companies in a group. If Chris’s case is not overruled, PCaW argued, such people will have no statutory whistleblowing protection where they work – in other words against the organisation to which they are supplied.
It has been three years since Chris Day first became a whistleblower – not that he realised at the time that was what he was doing. If he wins in the Court of Appeal he will get the chance to argue his case against HEE as the case resumes in the Employment Tribunal after a two year gap.
Chris will also have established that hundreds of thousands of people in “triangular employment” arrangements have statutory protection if they expose wrongdoing where they work. That should encourage some who may be having second thoughts about whistleblowing to go ahead, and it will also provide some protection for those like Chris who just did what they thought was right.
We don’t know when we will get the Court’s decision. The clever bet seems to be that it will be delivered in about two months. We will let you know as soon as we hear what decision the Court of Appeal reaches.
Tim Johnson/Law has been acting for Chris Day in the Employment Tribunal, the Employment Appeal Tribunal and most recently in the Court of Appeal.
Have a legal case that could benefit from crowdfunding?