Whistleblowing claim against hirer and employment agency

03 August 2016

An agency nurse employed by an Employment Business agency was allowed to bring a whistleblowing claim against the end-user hirer to whom she was assigned, a University Hospital Bristol NHS Foundation Trust.

McTigue was employed by Employment Business TMS Limited. TMS supplied McTigue to work for University Hospital Bristol NHS Foundation Trust as a Forensic Nurse Examiner in a sexual assault referral centre.

She had a detailed contract with TMS Limited, the effect of which was to make her its employee on standard terms. She also entered into an agreement with the Trust which determined her working time, clinical governance rules, Health and Safety duties, the identity of her supervisor and absence notification procedures.

McTigue was removed from the engagement of the Trust and brought claims of whistleblowing detriment against both the employing agency TMS Limited and the Trust, but subsequently abandoned the claim against TMS Limited.

The Employment Tribunal ruled it had no jurisdiction to hear her claim against the end-user Trust on the ground that she was not employed by it as a “worker,” whether under Section 230(3) Employment Rights Act 1996 (which is the standard definition of a “worker”) or under the specific definition of “worker” that applies to whistleblowing claims under Section 43K ERA 1996. This provision requires that an individual is only a worker for whistleblowing purposes if she is engaged on terms that were “substantially determined not by her but by the person for whom she works”.

The Employment Tribunal construed this to mean that the only person for whom McTigue worked was the Employment Business, as there was an employment contract between it TMS Limited and McTigue. However, on appeal the Employment Appeal Tribunal found that this was wrong as Section 43K focuses on identifying who, between the agency worker and the other parties (the Employment Business and the end-user Trust), substantially determines the relevant terms. If the agency worker herself substantially determines her own terms she is not a worker. Where the Employment Business and the end-user determine the relevant terms between them, there are “two employers” for these purposes. It is not necessary for the Tribunal to compare between the Employment Business and the end-user hirer to determine who the employer is. Furthermore, the agency worker can still be regarded as a worker under the extended definition that applies to the whistleblowing legislation, in relation to the end-user, and in fact a “worker” under the ordinary Section 230(3) definition of worker in relation to the Employment Business agency.

Hirers using agency workers should review their whistleblowing policies to ensure that they extend to agency workers especially in those cases where their own contracts determine some of their terms.

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