Health and safety adviser working through his own service company was covered by the legislation
There have been a number of developments recently in the context of whistleblowing, including the publication of the government's latest legal proposals. A recent case has also reaffirmed that the law will be applied in an inclusive way, in this instance bringing many agency workers within its scope.
Facts
The case Keppel Segher v Hinds concerned a health and safety advisor. During the course of a particular project, he made what he said were protected disclosures under the whistleblowing legislation and claimed employment protection. Hinds worked through a limited company which he hadset up, called Crown Safety Management, through which he offered health and safety advice within the construction and civil engineering industry. He was the sole share-holder, director and employee of the company. In the tribunal case that followed both parties accepted that operating through a service company in this way was a common (if not required) practice in the construction industry.
Tribunal
The engineering company he was conducting the project for challenged his entitlement to whistleblowing protection. For the project in question, Hinds was appointed via a recruitment agency. He was clearly not an employee but equally, the company argued, did not fall within the defined categories of worker who were entitled to such protection. In this case, there was no contractual relationship between Hinds and the end-user. The various contracts in place were between Hinds and his own company, that company and the recruitment agency, and the recruitment agency and Keppel Segher.
Keppel Segher argued that the terms of the various contracts in place were clear. Hinds was not personally introduced or supplied to the company (he operated through his own company), he negotiated his own terms with this company (Crown), and the recruitment agency reserved a right to substitute another worker in his place. Keppel Segher maintained that it could not be the employer against which the claim could be made since there was no contract between it and Hinds.
EAT
Both the tribunal and theEmployment Appeal Tribunal found that Hinds was a protected worker for whistleblowing purposes. Fundamentally, the EAT reiterated the need for tribunals to take a ‘purposive construction’ to the legal provisions on whistleblowing, and to provide protection for whistleblowers where possible, rather than deny it. While the contracts in this case provided an important starting point, therefore, the focus of the legislation was on what happened in practice. Hinds had been introduced and supplied as an individual. Furthermore, despite what the contracts said, in reality the end user was in control in the sense of determining the terms on which Hinds was engaged to do the work.
Comment
Although the government’s latest whistleblowing proposals reveal few changes to current legislation and substantial retention of the existing categories of individuals protected by it, employers still need to be wary. The law in this area applies more broadly than elsewhere, encompassing not just employees and workers but other individuals, such as home workers, students and agency workers like Hinds. It is also important to bear in mind that, since last year, employers and individual managers in the UK can be liable for the mistreatment of whistleblowers. This also sets the UK apart from many other legal jurisdictions (Holland, for example) which have no comparable whistleblowing protection.
Tribunal
The engineering company he was conducting the project for challenged his entitlement to whistleblowing protection. For the project in question, Hinds was appointed via a recruitment agency. He was clearly not an employee but equally, the company argued, did not fall within the defined categories of worker who were entitled to such protection. In this case, there was no contractual relationship between Hinds and the end-user. The various contracts in place were between Hinds and his own company, that company and the recruitment agency, and the recruitment agency and Keppel Segher.
Keppel Segher argued that the terms of the various contracts in place were clear. Hinds was not personally introduced or supplied to the company (he operated through his own company), he negotiated his own terms with this company (Crown), and the recruitment agency reserved a right to substitute another worker in his place. Keppel Segher maintained that it could not be the employer against which the claim could be made since there was no contract between it and Hinds.
EAT
Both the tribunal and theEmployment Appeal Tribunal found that Hinds was a protected worker for whistleblowing purposes. Fundamentally, the EAT reiterated the need for tribunals to take a ‘purposive construction’ to the legal provisions on whistleblowing, and to provide protection for whistleblowers where possible, rather than deny it. While the contracts in this case provided an important starting point, therefore, the focus of the legislation was on what happened in practice. Hinds had been introduced and supplied as an individual. Furthermore, despite what the contracts said, in reality the end user was in control in the sense of determining the terms on which Hinds was engaged to do the work.
Comment
Although the government’s latest whistleblowing proposals reveal few changes to current legislation and substantial retention of the existing categories of individuals protected by it, employers still need to be wary. The law in this area applies more broadly than elsewhere, encompassing not just employees and workers but other individuals, such as home workers, students and agency workers like Hinds. It is also important to bear in mind that, since last year, employers and individual managers in the UK can be liable for the mistreatment of whistleblowers. This also sets the UK apart from many other legal jurisdictions (Holland, for example) which have no comparable whistleblowing protection.
Simon Rice-Birchall is a partner at Eversheds
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