In McTigue v University Hospital Bristol NHS Foundation Trust, the EAT has clarified the circumstances in which an agency worker can claim whistleblowing protection against an end-user by virtue of the extended definition of ‘worker’ in S.43K of the Employment Rights Act 1996. Among other things, the EAT held that the fact that the individual is an ‘employee’ or ‘worker’ in relation to the agency does not prevent him or her also being a S.43K ‘worker’ in relation to the end-user.
M was employed by an agency, TMS Ltd, which provided her to work as a Forensic Nurse Examiner at a sexual assault referral centre operated by the respondent Trust, among others. M had a written contract of employment with TMS Ltd, which made her an employee on its standard terms. She was also subject to the Trust’s standard form contract, which, among other things, identified the supervisor under whom she would work, set out an absence notification procedure, and required her to cooperate with the Trust in relation to issues of health and safety, clinical governance, and working time. The contract also reserved the Trust’s right to terminate the contract for any reason that might jeopardise the quality of patient care. However, TMS Ltd would operate all disciplinary and grievance procedures, and was responsible for all M’s remuneration. M was removed from this engagement in December 2013 and brought claims of whistleblowing detriment under Part IVA of the ERA, alleging that she had made protected disclosures to the Trust. She originally brought her claim against both TMS Ltd and the Trust but discontinued the claim against TMS Ltd.
An employment judge found that the tribunal had no jurisdiction to hear M’s claim against the Trust because she was not employed by it as a ‘worker’, either under the standard definition in S.230(3) ERA or the extended definition that applies to whistleblowing claims under S.43K. The judge focused on S.43K(1)(a)(ii), which provides that an individual is only covered by the extended definition if he or she was engaged on terms that were ‘substantially determined not by him [or her] but by the person for whom he [or she] works’. The judge interpreted this to mean that the Trust would have had to determine the more significant terms on which M worked for TMS Ltd if M were to be a S.43K worker in relation to the Trust. Having regard to the detailed contract under which M was employed by TMS Ltd, the judge concluded that this condition was not met – the Trust did not contribute or determine more than a minority of the terms under which M worked. M appealed to the EAT.
Mrs Justice Simler, President of the EAT, began by setting out the proper interpretation of S.43K(1)(a) ERA. She observed that, in cases where an individual has been supplied by an agency to work for an end-user, a comparison must be made between the extent to which, on the one hand, the individual determines his or her terms of engagement to do the work and, on the other, the extent to which one of the other parties does so. Where the individual does not substantially determine the terms, the ‘employer’ is defined by S.43K(2) as the person who does so. Simler P noted that this ‘employer’ may be more than one person so that, if the agency and end-user both substantially determine the terms then both are the ‘employer’ for this purpose. There is no need to ask who, between the agency and end-user, determined the majority of the terms. As for the opening words of S.43K(1), which provide that extended ‘worker’ status can be claimed by an individual ‘who is not a worker as defined by S.230(3)’, Simler P rejected the Trust’s argument that, following the EAT’s decision in Day v Lewisham and Greenwich NHS Trust (Brief 1044), this prevents a worker who is a S.230(3) worker vis-à-vis an agency from being a S.43K worker of the end-user. The words mean that S.43K is only engaged where an individual is not a S.230(3) worker in relation to the respondent in question. Thus, the fact that M was a worker of TNS Ltd would not prevent her claiming S.43K ERA protection with regard to the Trust.
As for the result in the present case, Simler P held that the employment judge had erred in considering whether the Trust substantially determined the terms on which M worked for TMS Ltd. It should have looked at whether TMS Ltd and the Trust both substantially determined the terms on which she worked at the referral centre. The case would be remitted to a fresh tribunal for this question to be considered.
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