The tripartite nature of the agency worker's relationship with the employment business and the end-user often makes it confusing for an agency worker to establish the correct party against whom to bring a claim. "Workers" and not just employees are protected from detriment as a result of having blown the whistle (s.43A Employment Rights Act 1996 (ERA)) and the legislation goes further (s.43K) to allow a whistleblowing claim to be brought not only against an "employer" but also against the end-user where the terms of the contract are "substantially determined" by the end-user, or both the end-user and the employer.
In the recent decision of McTigue v University Hospital Bristol NHS Foundation Trust, the EAT has provided clarification on this s.43K "extended" definition of "worker" for the purposes of the whistleblowing claim holding that the fact that the individual is an "employee" or "worker" in relation to the agency does not prevent the worker also being a S.43K "worker'" in relation to the end-user.
An employment agency, Tascor Medical Services Ltd (TMS), had provided McTigue to work as a Forensic Nurse Examiner at a sexual assault referral centre operated by the respondent NHS Trust. She had a written contract with TMS on its standard terms. She also had an agreement with the Trust – on its standard form contract – which identified her supervisor, 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. It also included a right of dismissal for any reason that might jeopardise the quality of patient care. Notwithstanding this, it was the agency, TMS, who would operate all disciplinary and grievance procedures and who was responsible for McTigue's pay. In December 2013 she was removed from her position at the Trust.
McTigue claimed against the Trust that she had suffered whistleblowing detriment under the ERA, alleging that she had made "protected" disclosures to the Trust. Her original claim was also brought against TMS but this was discontinued.
The Tribunal judge did not consider that she could be a worker for the purposes of the claim against the end-user Trust under the s.43K ERA extended definition of "worker" as she was not engaged on terms that were "substantially determined" by the Trust. The judge interpreted s.43K to mean that the Trust would have had to determine the more significant terms on which McTigue worked but concluded that was not met in this case as the Trust did not contribute or determine anything more than a minority of her working terms.
McTigue appealed this decision to the EAT who held that the Tribunal had erred in considering whether the Trust substantially determined the terms on which McTigue worked for TMS when it should have looked at whether both TMS and the Trust substantially determined the terms on which she worked. The EAT held that there is no need to ask who, between the agency and end-user, determines the majority of the terms. The fact that McTigue was a worker of TMS would not prevent her claiming S.43K ERA protection with regard to the Trust.
In its judgment the EAT set out the following questions to address in determining whether an individual is a worker within s. 43K:
- For whom does or did the individual work?
- Is the individual a worker under the standard definition (s.230(3) ERA) in relation to a person or persons for whom the individual worked? If so, there is no need to rely on s.43K in relation to that person. However, the fact that the individual is a s.230(3) worker in relation to one person does not prevent the individual from relying on s.43K in relation to another person, the respondent, for whom the individual also works.
- If the individual is not a s.230(3) worker in relation to the respondent for whom the individual works or worked, was the individual introduced/supplied to do the work by a third person, and if so, by whom?
- If so, were the terms on which the individual was engaged to do the work determined by the individual? If the answer is yes, the individual is not a worker within s.43K.
- If not, were the terms substantially determined (i) by the person for whom the individual works or (ii) by a third person or (iii) by both of them? If any of these is satisfied, the individual does fall within the subsection.
- In answering question (e) the starting point is the contract (or contracts) whose terms are being considered.
- There may be a contract between the individual and the agency, the individual and the end-user and/or the agency and the end-user that will have to be considered.
- In relation to all relevant contracts, terms may be in writing, oral and may be implied. It may be necessary to consider whether written terms reflect the reality of the relationship in practice.
- If the respondent alone (or with another person) substantially determined the terms on which the individual worked in practice (whether alone or with another person who is not the individual), then the respondent is the employer for the purposes of the protected disclosure provisions. There may be two employers for these purposes.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.