Miss D Martin v Dental Partners (DISA) Limited — 2022

Miss D Martin brought a claim under section 47B of the Employment Rights Act 1996 alleging detriment for protected disclosures. At the preliminary hearing on 8 December 2022, the only issue for the tribunal was whether she was a worker within section 43K(1)(b) ERA 1996 so as to be entitled to bring the claim. The tribunal accepted that she had a contract with Dental Partners (DISA) Limited and that the contract was for the purposes of the respondent's business, namely dental services at Holt House in Matlock.

The tribunal rejected the claimant's case that Holt House was under the control or management of Dental Partners Trading Limited or Dental Partners Holding Limited. It found that Holt House was operated by the respondent, which had its own management structure and practice manager, its own lease, NHS contract, staff contracts, profit and loss account and balance sheet. The tribunal accepted the respondent's evidence that Trading and Holding were not involved in the day-to-day running of Holt House and that the central HR and finance functions within the group did not amount to control or management of the practice.

Because Holt House was under the respondent's control and management, the claimant did not fall within section 43K(1)(b) ERA 1996. The tribunal therefore held that she was not a worker for the purposes of the whistleblowing detriment provisions and dismissed the claim. The judge also said that, even if it had been necessary to decide the point, the claimant would in any event not have been a worker under section 230(3)(b) ERA 1996, referring to the contractual indicators of self-employment, her ability to work elsewhere, her own indemnity insurance, her self-employed tax status, and the lack of control over her clinical work beyond NHS England's SOPs as implemented by the respondent.