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Junior doctors protection from detriment by HEE - details of the HEE concession

Health Education England (HEE), the body responsible for education, training and workforce planning for all NHS staff in England, conceded its employer status at a preliminary employment tribunal hearing which considered if junior doctors in England could be protected from detriment by HEE when they raised a whistleblowing concern at work.

Details of the concession can be found in the judgment here.

The skeleton arguments of the parties, which are referred to in the judgment, can be found here.

The concession follows the Court of Appeal's ruling in Day v Health Education England and others [2017] EWCA Civ 329, which held that an employment tribunal had adopted the wrong test when deciding if HEE was Dr Day's "employer" for the purposes of section 43K(2)(a) of the ERA 1996 (see ). The case was remitted to a fresh tribunal to decide whether HEE substantially determined the terms of engagement.

On 14 May 2018, at a preliminary hearing at the London South Employment Tribunal, HEE conceded that it was the employer of "postgraduate trainees" (defined as doctors who have been appointed by HEE to a contract of employment and have a training number) for the purposes of section 43K(2)(a) of the ERA 1996.

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