Can an agency worker bring a whistleblowing claim against the end user client?

This question was considered by the Employment Appeal Tribunal (EAT) in the case of McTigue v University Hospital Bristol NHS Foundation Trust.

For these purposes of the whistleblowing legislation, a ‘worker’ is defined as:

‘an individual who is not a worker as defined by section 230(3)  but who works or worked for a person in circumstances in which:

  1. he is or was introduced or supplied to do that work by a third person, and
  2. the terms on which he is or was engaged to do the work are or were substantially determined not by him but by the person for whom he works or worked, by the third person or by both of them.’

The facts

The claimant, Ms McTigue, was an employee of an agency, Tascor Medical Services (TMS) Ltd, which supplied her to work for one of its clients, University Hospital Bristol NHS Foundation Trust (respondent trust), as a forensic nurse examiner at a sexual assault referral centre. The claimant was employed by TMS and had a written contract of employment with them. The claimant was also subject to the respondent trust’s standard form contract. The contact reserved the respondent trust’s right to terminate the contract for any reason that may jeopardise the quality of patient care. However, TMS would operate all disciplinary and grievance procedures, and was responsible for all of the claimant’s remuneration.

This engagement was brought to an end in December 2013. The claimant brought claims of whistleblowing, alleging that she was subjected to detriments by the respondent trust. She originally brought her claim against both TMS and the respondent trust, but discontinued the claim against TMS.

Decision of the Employment Tribunal

The Employment Tribunal (ET) held that the claimant was not engaged by the respondent trust as a ‘worker’ and therefore the tribunal had no jurisdiction to hear the claim. The judge concluded that the condition that the individual is engaged on terms that were ‘substantially determined’ by the respondent was not met. He found that the respondent trust ‘did not contribute or determine more than a minority’ of the terms. He therefore found that the claimant fell short of the necessary threshold to be deemed a worker. The claimant appealed to the EAT.

Decision of the EAT

The EAT held that the ET erred in its approach as to whether the claimant was a worker.

The EAT held that the definition expressly recognises that there can be more than one party who substantially determines the terms. Therefore, the agency and the end-user can both theoretically be deemed as the ‘employer’ if they both substantially determine the terms on which the individual works. Thus, a definition based on who determined ‘the majority of the terms’ was incorrect. It is not necessary for the claimant to show that the respondent determined any terms to the same or a greater extent than the agency did.

The proper approach is to ask whether the terms of employment were ‘in large part’ or ‘substantially’ determined by the party in question.

It follows that if the individual is an ‘employee’ or ‘worker’ in relation to the agency, this does not prevent the individual from also being a ‘worker’ in relation to the end-user.

Impact

The case is a warning to those organisations that use agency workers and in particular whose terms are determined by the end-user client, as they could be deemed to be workers and therefore be protected under the whistleblowing legislation.

If you have any questions, please contact:

Sejal Raja
Partner and Head of Employment
T. 020 7227 7410
E. sejal.raja@rlb-law.com

Ben Dos Santos
Paralegal
T. 020 7227 6743
E. ben.dossantos@rlb-law.com


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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