EAT Decision Reinforces Agency Workers' Rights

In a guideline decision, the Employment Appeal Tribunal (EAT) has reinforced the rights of agency workers for the purposes of the protected disclosure ('whistleblowing') provisions of the Employment Rights Act 1996 (ERA), underlining that it is legally possible for a person to have one job but more than one employer (McTigue v University Hospitals Bristol NHS Foundation Trust).

Ms McTigue had been recruited by an agency, Tascor Medical Services Limited, which had an arrangement to supply staff to work at a sexual assault referral centre operated by the University Hospitals Bristol NHS Foundation Trust. She worked as a forensic nurse carrying out medical examinations and providing related services at the centre.

Ms McTigue had a written contract of employment with Tascor, which paid her salary, authorised any overtime she worked and operated the disciplinary and grievance procedures that applied to her. She had also been issued with an Honorary Appointment by the Trust. This was a standard form contract which authorised her to carry out her duties as a forensic nurse examiner, identified a named supervisor and also reserved the Trust's right to terminate the contract in circumstances which could jeopardise the continuity of quality of the care offered to patients.

After she was removed from the contract, Ms McTigue launched Employment Tribunal (ET) proceedings against the Trust, claiming that she had been victimised for making a protected disclosure.

Under Section 43K(1)(a) of the ERA, the statutory protection available to whistleblowers applies to a worker supplied to an end user by a third party where the terms on which they are engaged to work are substantially determined not by the worker but by the organisation for which they work, by the third party or by both of them. The ET struck out Ms McTigue's claim on the basis that Tascor, not the Trust, was her employer because it had decided the majority of her contractual terms. In the ET's view, the Trust emphatically did not 'substantially determine' the terms on which she worked.

In upholding her challenge to that decision, the EAT found that the ET had erred in law. It had erroneously focused on which entity determined the substantial terms on which Ms McTigue was engaged to work when it should have focused on whether the Trust and Tascor had both substantially determined the terms, even if to different extents. The EAT held that the Trust was her 'employer', and that she was its 'worker', within the extended meaning given to those words by Section 43K(1)(a).

Noting that the provision was enacted primarily to protect agency workers provided to an end user in circumstances such as this, the EAT found that Tascor, as supplier, and the Trust, as end user, each had a substantial role in determining the terms on which Ms McTigue was engaged to work at the centre.

In order to assist in dealing with these issues, the EAT went on to set out the questions to be addressed by the ET when determining whether an individual is a worker within the meaning of Section 43K(1)(a).

The case was sent back to a different ET to be heard afresh in accordance with the EAT's ruling.