EAT clarifies how contract terms determine employer liability
Recently the Employment Appeal Tribunal (EAT) had to decide whether an agency worker could bring a whistleblowing claim against an end user (the organisation hiring the worker’s services) even if that worker is employed by the agency.
The case, McTigue v University Hospital Bristol NHS Foundation Trust, concerned a forensic nurse examiner employed by a medical services agency that supplied staff to a centre operated by the NHS trust. Her contract of employment with the agency was on its standard terms and covered issues such as remuneration, paid holiday, sick pay, disciplinary and grievance procedures, and employment termination notice periods.
She also had a standard form of contract with the NHS trust which referred to her named supervisor, the absence notification procedures, a requirement to cooperate with the trust in relation to health and safety issues, clinical governance and working time. The contract could be terminated by the hospital if there were concerns about the quality of patient care. The agency and the trust cooperated over McTigue’s time off arrangements and uniform requirements.
In December 2013, McTigue was removed from her assignment and alleged this was because she had made whistleblowing disclosures to the trust. She brought claims against both the agency and the trust, alleging she was subjected to detrimental treatment as a result of blowing the whistle, including her removal from the assignment by the trust. She subsequently decided not to proceed with the claim against the agency, only against the trust.
Tribunal
The employment tribunal had to decide whether or not McTigue was a ‘worker’ and protected from dismissal and detrimental treatment under the whistleblowing legislation.
Under the Employment Rights Act 1996, a worker is someone working under an employment contract, or any other type of contract, where he or she performs the work personally. This definition includes agency workers in relation to whistleblowing, and has been extended specifically to health service workers (because NHS contractual arrangements often put staff outside the standard definition of ‘worker’) if their terms are substantially determined by the organisation they are working for, by their agency, or both.
The tribunal decided it could not hear McTigue's claim because she didn’t meet either the standard or extended definition of ‘worker’ in the Act as the trust did not determine either the majority, or the most significant, of her terms.
EAT
McTigue appealed to the EAT and was successful. The Act stated that both the supplier and end user can substantially determine the terms of the worker’s contract for the whistleblowing protection to apply. There was no need for a comparison between the two organisations and no need to focus on which one substantially determined the terms of the contract. Both the agency and the trust could substantially determine the terms to different extents and both could still be employers for whistleblowing purposes. The starting point for tribunals was to consider the contracts terms themselves.
The case was remitted to a different employment tribunal for reconsideration.
Comment
This case serves as a warning to companies using agency workers, especially those whose terms are determined by the client, that they could be considered workers and protected by the whistleblowing legislation. It shows how agency workers can bring whistleblowing claims against the organisations actually using their services (the end user), even if they are employed by an agency, provided the end user substantially determined the terms on which they were engaged. The decision also confirms the definition of ‘worker’ is wider in relation to whistleblowing than in the usual sense in employment legislation, and that both an end user and an agency could be ‘employers’ for the purposes of the whistleblowing legislation.
The extent to which either the end user or the agency determine the worker’s contract terms, and whether they do so substantially, will be relevant for establishing any potential employer liabilities for whistleblowing purposes.
Michelle Lawlor-Perkins is a senior solicitor in employment law at Blake Morgan LLP
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