The EAT has held that an agency worker was entitled to
whistleblowing protection against an end-user as she was a
"worker" under the extended definition in section 43K of
the Employment Rights Act 1996.
The extended definition of "worker" applies only to
the whistleblowing provisions of the ERA 1996. It was included to
protect agency workers and was specifically intended to provide
whistleblowing protection for health workers in England, Scotland
and Wales, where the NHS has contractual arrangements in place that
mean such workers do not fall within the standard definition of
"worker" under section 230(3) of the ERA 1996.
Section 43K(2) of the ERA 1996 provides that in respect of an
agency worker, the "employer" includes "the person
who substantially determines or determined the terms on which he is
or was engaged..."
Ms McTigue was employed by an agency, TMS Ltd (TMS), and was
assigned to work as a nurse for the University Hospital Bristol NHS
Foundation Trust (the Trust) in a sexual assault referral centre.
She had a written employment contract with TMS on their standard
terms. She was also subject to the Trust's standard contract
which required her to cooperate with the Trust in relation to
health and safety, clinical governance and working time and also
identified the supervisor under whom she would work.
Ms McTigue was removed from the assignment in December 2013 and
brought whistleblowing claims against TMS and the Trust in relation
to the protected disclosures she had allegedly made to the Trust
and the detriment she claimed to have suffered as a result.
The Employment Tribunal ruled that it did not have jurisdiction
to hear Ms McTigue's claim as she was not a "worker"
under the standard definition or the extended definition that
applies to whistleblowing. Ms McTigue appealed to the EAT.
The EAT allowed the appeal. The Employment Tribunal had erred in
concluding that the Trust could not have substantially determined
the terms on which Ms McTigue worked for TMS, because TMS had done
so. The EAT held that the definition allowed for both the end-user
and the agency, or either of them, to have substantially determined
the individual's employment terms. Thus, the Employment
Tribunal should have considered whether TMS and the Trust both
substantially determined the terms on which Ms McTigue worked at
the referral centre. The case was remitted to a fresh Employment
This EAT decision confirms that, depending on the extent to
which the agency and end-user have both determined the terms under
which the individual is engaged to work for the end-user, an agency
worker may bring a whistleblowing claim against the agency, the
end-user or both.
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