Whistleblowing: A worker can sue both the end user, as well as their employer, if the end user also determines the terms of an engagement
Published 2 August 2016
In this case the EAT clarified the meaning of the extended definition of "worker" in section 43K of the Employment Rights Act 1996, which applies to protected disclosures made by workers.
Ms McTigue was a Forensic Nurse Examiner employed by an organisation called Tascor Medical Services Limited ("Tascor"). Tascor provided staff to, and managed staff at, "The Bridge", a Sexual Assault Referral Centre, operated by University Hospitals Bristol NHS Foundation Trust ("the Trust").
Ms McTigue worked at The Bridge.
Ms McTigue was employed under a contract of employment with Tascor, but she was also issued with an Honorary Contract by the Trust. Honorary Contracts are commonly used across the NHS where an individual is employed by another employer but is required to undertake work on a site operated by an NHS organisation.
The Honorary Contract addressed matters such as the standards of behaviour Ms McTigue would be required to adhere to while on Trust premises; the Trust's requirements regarding disclosure of patient information and required Ms McTigue to adhere to some of the Trust's policies such as health and safety rules and the equal opportunities policy.
Core contractual matters such as pay; hours; annual leave; pensions; grievance; absence management and addressing disciplinary issues were addressed and governed by Ms McTigue's contract of employment with Tascor.
The Trust terminated Ms McTigue's Honorary Contract which prevented her from continuing her duties at The Bridge. Ms McTigue then brought a claim against the Trust, alleging that she had been subjected to a detriment on the grounds of being a whistleblower. To be able to pursue her claim against the Trust, she needed to establish that she was a "worker" at the Trust as defined by s43K of the Employment Rights Act 1996.
S43K contains an extended definition of "worker". A worker is stated to be someone who is introduced or supplied to work for an organisation by a third person and the terms on which he is or was engaged "are or were in practice substantially determined not by him but by the person for whom he works or worked, by the third person or both of them".
In this case, even though Tascor was not an employment agency, it effectively supplied Ms McTigue to undertake work within the Trust. So, the key issue was who substantially determined her terms? The Employment Appeal Tribunal held that the key questions were whether her terms were substantially determined by Tascor, the Trust or both Tascor and the Trust?
The EAT held that if the Trust had some part in determining the terms on which Ms McTigue worked she would be able to bring a claim as a worker against the Trust for whistleblowing detriment. The case was sent back to a fresh Tribunal to consider this point.
What does this mean for employers?
This case significantly widens protection for whistleblowers. Following this decision individuals who are employed by a third party and also working on another organisation's premises (whether that is under an Honorary Contract, secondment agreement or some other contractual arrangement) are protected should they suffer a detriment for whistleblowing by that third party. This is regardless of whether that arrangement with the third party simply deals with day to day practicalities rather than core employment terms and conditions.
Employers will need to ensure there is a mechanism in place so that whistleblowing concerns raised by non-employees working on their sites are addressed either within the organisation or by the employer.