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Whistleblowing protection extends to “worker” supplied through own company

23 September 2014

In a case which will be of interest to Employment Businesses and particularly those specialising in the provision of Health & Safety at Work consultants, the Employment Appeal Tribunal has found individual human being consultants providing services through their own intermediate service limited companies are “workers” for the purposes of the whistleblowing legislation.

The worker in this case (Mr Hinds) was a Health & Safety at Work consultant who was required by law to provide his services through a limited company, in this case CSM Limited, of which he was a director, shareholder and employee. The end user client to whom Mr Hinds provided his services was KS Limited. Mr Hinds, or rather, technically, CSM Limited were introduced to KS Limited by a recruitment agency, FR Limited and KS Limited contracted with that recruitment agency Employment Business, FR Limited. There was no contractual nexus between Mr Hinds and the client KS Limited or in fact between Mr Hinds and the FR Limited: the two contracts were between Mr Hinds’ company, CSM Limited, and FR Limited on the one hand and FR Limited and KS Limited on the other hand.

Mr Hinds blew the whistle about an alleged breach of duty by KS Limited. He then alleged that KS Limited subjected him to a detriment because he had blown the whistle. Mr Hinds brought a tribunal claim against KS Limited who defended on the basis that he was not a “worker” for the purposes of the whistleblowing legislation.

Both the Tribunal and the Employment Appeal Tribunal found that Mr Hinds was a protected “worker” even though he provided his service through his own limited company, with whom FR Limited contracted. In this legislative context the definition of “worker” is wide and extends to those situations in which the human being worker provides personal services to an end user client through a separate company. The contractual arrangements were not a sham.

(Keppel Seghers UK Limited v Hinds)