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Definition of a ‘worker’ in whistleblowing cases

NHSFurther to Susan Stafford’s article earlier this month in respect of whistleblowing, in the recent case of McTigue v University Hospital Bristol NHS Foundation Trust, the Employment Appeal Tribunal (EAT) has provided clarification regarding when an agency worker can claim protection for whistleblowing against an end user using the extended definition of a workers under section 43K of the Employment Rights Act 1996.

 

The claimant in this matter is a nurse who was employed by an agency and placed to work at the respondent NHS Trust.  She brought a claim for protected disclosure detriments against the respondent under the Employment Rights Act 1996 (ERA). Under the ERA , only employees and workers are eligible to bring such claims against their employers. At first instance, the Employment Tribunal found that the claimant could not be categorised as such an employee/worker and her claim failed. The claimant therefore appealed to the EAT.

 

The claimant argued that she was employed by the Trust for the purposes of bringing a whistleblowing claim because she fell within the extended definition of “worker” at s.43K(1)(a) ERA, which states as follows:

…an individual who is not a worker as defined by section 230(3) who—

(a) works or worked for a person in circumstances in which—

(i) he is or was introduced or supplied to do that work by a third person, and

(ii) the terms on which he is or was engaged to do the work are or were in practice substantially determined not by him but by the person for whom he works or worked, by the third person or by both of them…”

 

The respondent however presented the counter-argument that the Tribunal had been correct to find that it had not “substantially determined” the terms of the claimant’s engagement, as her terms were largely determined by her supplying agency work. The respondent further stated that as the claimant was undoubtedly a worker  in relation to the agency, she could not also be a worker of the Trust for the purposes of s43K(1)(a) ERA as that extension only applies to “an individual who is not a worker as defined by section 230(3)”.

 

The EAT held

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Brexit CLB Employment Solutions immigration news newsletter

Brexit – what does this mean for EU Nationals currently residing in the UK?

Brexit 2Following on from my article last month covering the potential impact of Brexit on UK Employment Law, the debate goes on as to the possible implications for workers. So – what happens to the roughly 3.6 million EU Nationals living and working in the UK going forwards?

Prior to the Referendum, the Vote Leave campaign assured us that any new immigration system would have no effect on EU citizens already living in the UK and that these individuals would "automatically be granted indefinite leave to remain in the UK and will be treated no less favourably than they are at present". The Remain campaign however warned of a different outcome, stating that "all current EU citizens here would lose their automatic right to come and work in the UK. This means that living and working in the UK would be significantly more difficult after a leave vote for EU citizens, and is likely to involve restrictions and barriers in the form of permits, visas or other costs and bureaucracy".

A recent study by think tank the Social Market Foundation, found that on the basis Article 50 is triggered next year and the process takes two years to complete (i.e. until 2019), more than 80¢ of the 3.6 million EU citizens living in the UK would meet the 5 year requirement to remain. This would mean that the vast majority of all EU citizens who arrived in the UK prior to 2014 and continuing to live here, would have the right to permanent residency by the time Britain leaves the EU.

The study also found however that up to 590,000 EU Citizens living in the UK may not have the right to remain once Brexit is complete.

New Prime Minister Theresa May has been under intense pressure from many Eurosceptics to impose a hard line Brexit that would mean EU citizens would lose their right to automatically come to the UK, however she recently told nearly 800,000 Poles living in the UK that she “wants and expects” them to remain in the UK after Brexit.