Further 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 the fact that an individual is an employee or worker of the agency does not stop them from also being a “worker” in relation to the end-user. Mrs Justice Simler DBE set out a series of questions which should be asked to determine whether an individual falls within the extended definition of a “worker” for the purposes of the whistleblowing legislation. In particular, it depends on the extent to which the other parties to the engagement can determine the terms on which the individual is engaged. Also, where these terms have been substantially determined by both the agency and end-user, both are the individual’s employer for the purposes of the whistleblowing legislation. The EAT held that the Employment Tribunal had erred in considering whether the respondent substantially determined the terms on which the Claimant worked for the agency. Instead it should have considered whether the agency and the trust both substantially determined the terms under which she worked. The case was therefore remitted to a new tribunal for these questions to be considered.
Employers should therefore be aware that the whistleblowing legislation can extend to agency workers and this should be borne in mind when any relevant policies are prepared or agency workers are used. Please contact Katharine Kelly on 0151 239 1079 or firstname.lastname@example.org for further guidance.