Mr E. Ekakitie v Bookachemist Recruitment Ltd — 2021

The claimant, a registered pharmacist who worked through Click Heath Ltd, was engaged by the respondent for a proposed full-time locum pharmacy manager role at Rotherham Road pharmacy. The written agreement, described as a standard service contract for Ltd companies, was for a start date of 1 May 2020 and stated that Click Heath Ltd would provide the services and that there was no right of substitution. Before that date, however, work had already been done on an informal basis, with assignments offered by telephone, the claimant able to accept or refuse them, and invoices submitted by Click Heath Ltd and paid by the respondent. The material time for the alleged protected disclosures was 12 March, 30 March and 22 April 2020.

The tribunal held that, pre-1 May 2020, the claimant was not a worker within section 230(3) ERA 1996. It found there was no direct contractual relationship between the claimant and the respondent, that the contractual relationship was with Click Heath Ltd, that the claimant could choose whether to accept work and could send a substitute, and that he was operating his own business through a company he controlled. In reaching that conclusion the tribunal referred to Jivraj v Hashwani, Pimlico Plumbers Ltd v Smith and Windle v Secretary of State for Justice.

The tribunal nevertheless held that the claimant fell within the extended whistleblowing definition in section 43K ERA 1996. It accepted that he had been introduced or supplied through Click Heath Ltd and considered the terms substantially determined by the respondent, but the written 1 May 2020 arrangement never came into force because the relationship ended before that date. The tribunal instead relied on section 43K(1)(c), finding that before 1 May 2020 the claimant was providing services in accordance with arrangements made by the National Health Service Commissioning Board, as a registered pharmacist dispensing NHS prescriptions on the respondent's premises and personally signing off prescriptions while remaining accountable to his regulator.

The result was that the claimant was entitled to bring his claim. The judgment does not record any financial award, and it contains no finding on the substantive whistleblowing allegations beyond the preliminary status issue.