Miss Deborah Martin v NHS Business Services Authority — 2021

At an open preliminary hearing on 21 July 2021 before Employment Judge P Britton sitting alone, Miss Deborah Martin withdrew her unfair dismissal claim, her disability discrimination claim, and her claim of discrimination by reason of religious or other philosophical belief. Those claims were dismissed upon withdrawal. The remaining issue was a whistleblowing detriment claim under s.47B ERA 1996.

For the purpose of the hearing the tribunal proceeded on the basis that the claimant may have made a protected disclosure, but it held that the claim failed because she had not established that she was an employee or worker of NHS Business Services Authority. The judge found that NHBSA performed a payroll function for NHS England and a limited regulatory function, had no contract with the claimant, did not supply her with work, did not control her work, and did not require her to use its equipment or wear its uniform. The submission that NHBSA was her common law agent was rejected.

Applying the ERA worker provisions, including s.230(3) and s.43K, and referring to Uber BV & Ors v Aslam & Ors, the tribunal held that the claimant did not come within the statutory definition of worker. It noted her concerns about the standard of NHS dental providers and about coronavirus-era payment arrangements, but those matters did not create worker status. The whistleblowing claim was therefore dismissed for want of jurisdiction, and no remedy was awarded.