Can a junior doctor come within the extended definition of ‘worker’ for whistleblowing purposes, even if he already falls within the scope of the traditional definition of ‘worker’ because he is employed by an NHS Trust?
Yes, held the Court of Appeal in Day v Health Education England , even though the extended definition of worker at s. 43K(1)(a) ERA 1996 expressly provides that it only applies when s.230(3) ERA 1996 does not.
The Court of Appeal applied a purposive construction of Part IVA ERA 1996, and held that the phrase: 'as against a given Respondent' should be implied into s.43K(1) ERA 1996. Accordingly, a s.230(3) worker can also be a worker within the extended definition in relation to another employer, introducer or end-user. The Court of Appeal held that the extended concept of employer at s.43K(2)(a) ERA 1996 could apply to Health Education England (the national training body), as it was possible that both the NHS Trust employing the junior doctor and Health Education England could substantially determine the terms on which a junior doctor was engaged. Finally, the Court of Appeal held that it was not appropriate for the issues of worker and employer status to have been effectively determined by an employment tribunal at a Preliminary Hearing listed to hear a strike out application made by Health Education England. The determination of both issues required the employment tribunal to make findings of fact, and indeed the employment tribunal at the strike out application had been shown some limited documentary and witness evidence. The appropriate procedure was a Preliminary Hearing listed to decide a preliminary issue, and both parties should have an opportunity to adduce evidence at that hearing. The draft Employment Rights Act 1996 (NHS Recruitment – Protected Disclosure) Regulations 2017 , which will be made pursuant to s.49B ERA 1996 and are currently subject to consultation, will expressly prohibit 'discrimination' by an 'NHS employer' - including Health Education England - because a job applicant has previously made a protected disclosure, or appears to the prospective employer to have done so.
With thanks to Daniel Barnett’s employment law bulletin for providing this update.
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Holiday Pay and ‘three-month gap’ rule 22 May 2017
The Scottish Employment Appeal Tribunal has confirmed in Bear Scotland appeal that a gap of three months always breaks the series of deductions for the purpose of assessing a time bar argument.
Scottish Legal News provides a concise summary:
In Fulton and Another v Bear Scotland Ltd UKEATS/0010/16/JW, the Employment Appeal Tribunal (EAT) has confirmed that the previous EAT decision that a gap of more than three months between non-payments or underpayment of wages (and in this case, holiday pay) broke a ‘series’ of deductions for the purpose of bringing an unlawful deduction from wages claim was binding and the Employment Tribunal could not depart from it. Case history This is the most recent decision in the on-going holiday pay claim appeals. The EAT decided in an earlier claim involving Bear Scotland and two other cases that any payments received in relation to non-guaranteed overtime which employees required to work counted when calculating holiday pay for the purpose of the first 20 days’ annual leave in a year under the Working Time Directive. In the same judgment, Mr Justice Langstaff decided that a gap of more than three months between deductions of wages breaks the chain in a ‘series’ of deductions in relation to a claim for unlawful deduction of wages. The Bear Scotland case was then remitted to the Employment Tribunal which applied Mr Justice Langstaff’s decision and dismissed claims (or parts of claims) where more than three months had passed between successive non-payments or underpayments of holiday pay as being time-barred. Current Appeal Although they had not appealed against the EAT’s decision, above, the claimants appealed to the EAT arguing that the decision of Mr Justice Langstaff in relation to the 3-month gap was not binding on the Tribunal; it only created a strong presumption that the claim was time-barred. Other points of appeal were also raised. The EAT dismissed the appeal. Implications Employers can now breathe a sigh of relief as this decision confirms that tribunals are bound to find that a break in a series of deductions of more than three months’ will break the chain for the purpose of time-bar in holiday pay; and
The Chartered Institute of Payroll Professionals
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