Under sections 43A to 43L of the Employment Rights Act 1996, whistleblowers are protected from being subjected to any detriment or dismissal because they have made a protected disclosure. Unlike some other forms of employment protection, such as unfair dismissal, whistleblowing protection is not limited to employees – all “workers” are covered.
A worker for these purposes is:
- “an individual who has entered into or works under a contract of employment or any other contract whereby the individual undertakes to do or perform personally any work or services for the other party to the contract”, unless they are in business on their own account and the other party is their customer or client (the “general definition”, s230 ERA 1996); or
- an agency worker who is introduced or supplied by someone else to do work for the end user, and the terms are substantially determined not by the agency worker, but by the agency or end user; in these situations, “employer” means “the person who substantially determines or determined the terms on which he is or was engaged” (the “extended definition”, s43K(1)(a) ERA 1996).
In this case, the EAT had to consider an appeal against an employment tribunal’s decision that an agency worker, who had made protected disclosures to the end user, could not then bring a claim against it.
The Claimant was employed by an agency, Tascor, and was assigned to work at the Trust. She had a written contract of employment with Tascor, and was also given an “Honorary Contract” by the Trust (which was in fact the Trust’s standard form contract including details of her supervisor, absence notification procedures, and a requirement that she cooperate with the Trust on certain matters. It also gave the Trust a right to terminate the Honorary Contract in case of any reason or cause for concern that might jeopardise the continuity of quality of care offered to patients). Tascor and the Trust cooperated over time off and holiday arrangements for the Claimant. Tascor was responsible for disciplinary and grievance procedures and was liable for her remuneration.
The Trust “played a part” in the decision to remove the Claimant from the contract in December 2013. She subsequently brought whistleblowing claims based on protected disclosures to the Trust. An employment tribunal found that it had no jurisdiction to hear her claim as she was not a “worker” under either definition, because the Trust (against which she was claiming) did not “substantially determine” her terms.
The EAT noted that the purpose of the extended definition of worker was to protect agency workers and specifically health care workers in England, Scotland and Wales, where the NHS’ contractual arrangements with agencies mean that they fall outside the general definition.
Once it is found that an individual has been supplied by an agency to work for another person, it must be determined whether the individual substantially determines their own terms of engagement or whether somebody else does (whether the agency, or the end user, or both – it is possible that these two together have substantially determined the terms).
Here, there were two written contracts – one between the Claimant and Tascor, and one between the Claimant and the Trust. The fact that the Claimant had a contract directly with the agency did not mean she fell outside either definition of worker. The tribunal had dismissed the contract with the Trust as providing only a small measure of control to the Respondent. In fact, the tribunal should have considered the terms on which the Claimant was engaged, and asked whether the Trust and Tascor both substantially determined the terms, or whether the Claimant did.
It was irrelevant that the Claimant had also brought a claim against Tascor (and then discontinued that claim). Tascor and the Trust were separate persons and her claim against Tascor did not mean she could not also have a claim against the Respondent. In any case, Tascor was not vicariously liable for the Respondent’s employees’ actions, and it was unlikely that the Respondent’s employees’ actions would be found on the facts to have been done as workers or agents of Tascor.
Accordingly, the EAT found the tribunal had erred in its interpretation of the extended definition of worker, and remitted the case to a fresh tribunal.
What to take away
The EAT judgment sets out at paragraph 38 the questions which should be asked to determine whether an individual is a worker for whistleblowing purposes. This includes a reminder that there may be two employers.
This case makes clear that where the relevant terms of engagement are contained in contracts with different parties, it is not necessary to work out which terms are determined by each party, only whether the terms have been substantially determined by the claimant or not, in order to determine whether the claimant agency worker is protected under whistleblowing legislation. (However, it may be necessary to do that in order to work out who is the employer – which may, depending on the facts, be either one or even both of them).