The claimant in this case (Dr Day) was engaged by both Health Education England and the NHS has recently won a whistle blowing claim against both employers.

In order to succeed against HEE, he first needed to deal with their argument that he was not a worker of theirs. The analysis that had been applied to this question originally focussed on which potential employer played a greater role in determining his terms, HEE or NHS. Under this analysis, the Employment Tribunal originally hearing this case decided that HEE didn’t substantially determine his terms (this was the NHS) and therefore he was not a worker vis-a-vis HEE.

Worker status is required in order to be able to bring whistle blowing claims and Dr Day therefore appealed.

The Employment Appeal Tribunal held that the analysis was wrong because it took a comparative approach and failed to envisage the possibility that a claim could be brought against two parties, and that work for more than one party could give the individual the status of worker.


This decision confirms that a worker may have more than one employer in order to have ‘worker’ status and thus be able to bring whistle blowing claims, claims for working time, holiday etc.

Published in…

Updates: For employers: Holiday and working time | For employees: Holiday |
Tagged with: Working time |

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