Whistleblowing: Definition of "worker"
Published 6 September 2016
In this case, the EAT considered whether the extended definition of "worker" which applies in whistleblowing legislation would apply to an agency worker bringing a claim against the agency's client, a hospital trust, arising out of protected disclosures made to the trust.
Ms McTigue was employed by an agency, Tascor Medical Services Ltd, and was supplied to work as a nurse for the University Hospital Bristol NHS Foundation Trust. She had a written contract of employment with Tascor, and she was also given the Trust's contract. Her contract with the Trust identified the supervisor under whom she would work, set out an absence notification procedure, and required her to cooperate with the Trust in relation to issues of health and safety, clinical governance and working time. It also reserved the Trust's right to terminate the contract for any reason or concern that might jeopardise the quality of patient care. However, Tascor operated all disciplinary and grievance procedures, was responsible for her remuneration and could authorise or require overtime.
Ms McTigue was removed from her assignment and claimed that she had suffered a detriment because she was a whistleblower. She originally brought claims against Tascor and the Trust, but discontinued the claim against Tascor.
To be able to bring a whistleblowing claim against the Trust, she had to show that she was protected as a "worker" under whistleblowing legislation. The definition of "worker" for whistleblowing protection extends to individuals who are not protected by other employment legislation, including agency workers, contractors, and specific categories of individuals who work in health services. As an agency worker, Ms McTigue would only be covered by the extended definition if she was engaged on terms that were "substantially determined" not by Ms McTigue herself, but by the person for whom she worked. The employment judge interpreted this to mean that the hospital trust would have had to determine the majority of the terms, or at least the more significant ones, on which she worked for the agency. The employment judge considered that this test was not met, since the Trust did not contribute or determine more than a minority of the terms under which she worked.
Mrs McTigue appealed to the EAT, which held that the employment judge had taken the wrong approach. The legislation focus should be on identifying who, as between the individual and the other parties (i.e. the agency and the end user, the Trust) substantially determines the relevant terms. If the individual substantially determines their own terms, they are not a worker under the extended definition. Where the agency and the end user determine the relevant terms between them, both parties might have "substantially determined" the terms, and there could be two "employers" for these purposes. A comparison between the agency and the end user is not necessary.
What does this mean for employers?
This case follows last year's case on the extended definition of "worker", and is another reminder to employers to be aware of the additional categories of worker that are protected by whistleblowing legislation.