In the case of McTigue v University Hospital Bristol NHS Foundation Trust, the Employment Appeal Tribunal has clarified that the meaning of ‘worker’ under the whistleblowing provisions extends to agency workers.
Facts
Ms McTigue was employed by an agency and was assigned to work as a nurse for the NHS Trust in Bristol. She had a contract of employment with the agency and was also subject to certain terms issued by the Trust, including the Trust’s right to terminate the contract for any reason or concern that might jeopardise the quality of patient care.
Ms McTigue was removed from the assignment in December 2013, and brought a detriment claim based on protected disclosures that she had made to the Trust.
An employment tribunal found that it had no jurisdiction to hear the claim because Ms McTigue was not a ‘worker’ of the Trust for the purposes of the whistleblowing legislation. Under the legislation, a ‘worker’ includes someone who works for an organisation in circumstances where she was supplied to carry out that work by a third party and the terms on which she is engaged to do the work are in practice substantially determined by either the organisation for which she works, or by the third party, or by both of them. The judge concluded that as most of Ms McTigue’s terms and conditions of employment were set by the agency, Ms McTigue could not be a ‘worker’ of the Trust.
Ms McTigue appealed to the EAT.
EAT Decision
The EAT allowed the appeal, concluding that the tribunal had erred in its interpretation of the extended definition of ‘worker’ in the whistleblowing provisions. The EAT said it was irrelevant whether the agency or the Trust determined the terms of Ms McTigue’s engagement to a greater or lesser extent than the other. As the Trust had set some of the terms of her engagement, it could be classed as Ms McTigue’s employer, as well as the agency, for the purposes of the whistleblowing legislation.
The case has been sent back to be re-heard by a new tribunal.
Comment
This case confirms that where the terms of an individual’s assignment are drawn from multiple parties, it is not necessary to determine which terms derive from which party for the purpose of deciding whether they are protected under the whistleblowing provisions. The EAT confirmed that an agency worker could have two ‘employers’ for the purposes of a whistleblowing claim where both the agency worker and the end-user have a hand in setting the worker’s terms.
The case highlights the breadth of the protection afforded under the whistleblowing legislation. If you are an employer who uses agency workers and have any say in the terms and conditions of those workers, you may find that you are liable under the whistleblowing legislation if you terminate the engagement of that agency worker in circumstances where they have blown the whistle.
McTigue v University Hospital Bristol NHS Foundation Trust UKEAT/0354/15
