Student Lawyer Blog: Can agency workers make whistleblowing claims?

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Case: McTigue v University Hospital Bristol NHS Foundation Trust UKEAT/0354/15

A whistleblower is defined as an individual who raises concerns about misconduct or wrongdoing within an organisation. Whistleblowers are afforded a certain amount of protection and can make claims to an Employment Tribunal after being dismissed or victimised following a protected disclosure.

Although the Employment Rights Act 1996 (ERA 1996) protects whistleblowers, cases can often become more complicated depending on the nature of the worker’s employment agreements. When an individual is employed by an agency, rather than the organisation they work for (the ‘end-user’), their right to protection can vary greatly. The crucial factor is often whether they qualify as a ‘worker’ as defined under the ERA 1996.

Relevant law:

Section 43K(1)(a) of the ERA 1996 specifically aims to include agency workers within the scope of whistleblowing protection afforded to normal workers. It states that, even if they do not meet the normal definition of a ‘worker’, an individual will still be afforded protection, provided that individual:

“works or worked for a person in circumstances in which—

(i)   he is or was introduced or supplied to do that work by a third person, and

(ii)  the terms on which he is or was engaged to do the work 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 by both of them.”

Facts:

Ms McTigue was an agency worker for Tascor Medical Services Limited (TMS) who supplied her to University Hospital Bristol NHS Foundation Trust (‘the Trust’) as a Forensic Nurse Examiner. Ms [ARP3] McTigue’s standard written contract under TMS made her entitled to paid holiday, sick pay, maternity leave, pensions, company disciplinary and grievance procedures and notice to terminate. Furthermore, she also had a contract with the Trust allowing her to practise as a nurse under the appropriate supervisor.

In December of 2013 Ms McTigue was dismissed, allegedly after a series of oral and written protected disclosures concerning the likely endangerment or future endangerment of patients due to protocols of medical bookings not being followed. She went on to claim that this was a breach of her right under section 47B of the ERA 1996, which states that:

“a worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.”

This is a fundamental part of the legal protection given to whistleblowers.

In her original claim against the Trust, Ms McTigue argued that her termination of employment was an act of unlawful detriment brought around by her disclosure of malpractice. However, the Employment Tribunal dismissed her claims on the grounds that she did not qualify as a ‘worker’ and was therefore not eligible for whistleblowing protection. The Employment Tribunal considered that, for Ms McTigue to meet this definition, the Trust would have had to determine the majority of her terms of employment.

Ms McTigue went on to appeal, and the Employment Appeal Tribunal (EAT) held that she could qualify as a worker under section 43K of the ERA 1996. As described before, this section allows an individual to be considered a ‘worker’ when they are engaged on terms ‘substantially determined’ by the organisation they work for- be it an agency, end-user or both. This will exclude individuals who have substantially determined the terms of their work themselves (such as people who are self-employed) but in Ms McTigue’s case, her work terms were held to be substantially determined by TMS and the Trust. It was held that more than one party, besides the individual, could be significantly involved in determining terms, and it was unnecessary to decide which of those parties was more dominant.

Conclusion:

The President of the EAT, Mrs Justice Simler, held that the original approach of determining the influence of TMS and the Trust was incorrect. The Tribunal should have instead focused on the relationship between Ms McTigue and the Trust. It was found that the Trust’s influence over her terms of employment very much satisfied the need for ‘substantial determination’.

Implications:

The decision by the EAT is important as it widens the scope for the protection of whistleblowers, especially in relation to agency workers. It reminds organisations that they cannot assume immunity from whistleblowing claims in relation to less-permanent workers, and should therefore consider agency workers the same as any other employee in this respect. This is important as it encourages a wider spectrum of workers to speak up when they witness malpractice, especially when that wrongdoing could put health or safety at risk. The fear of being unfairly persecuted for disclosing information can be a powerful deterrent to workers looking to speak out.

This case and its outcome is beneficial to agency workers as it means they have more job security and protection from mistreatment, as well as being able to do their duty to those in their care. Furthermore, as disclosures are made in the name of public interest, this can go on to benefit many others and prevent undue suffering.

By | 2018-11-30T10:05:52+00:00 November 27th, 2018|Employment Disputes, Student Case Blogs|

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Myisha Beebeejaun