In the case of McTigue v University Hospital Bristol the Claimant, an agency nurse, had a written contract of employment with an agency and was assigned to work in a medical centre operated by the Respondent, an NHS Trust. The Claimant was also issued with a contract by the NHS Trust which identified a supervisor, imposed a procedure for reporting sickness absence, required her to cooperate in relation to issues of health and safety, clinical governance and working time and included a right of dismissal. 

The statutory protection available to whistleblowers applies to a ‘worker’ who makes a protected disclosure within the meaning of Part IVA Employment Rights Act 1996 (ERA 1996) and has been subjected to detriment by any act or deliberate failure to act by their employer on the ground that the worker made a protected disclosure. Section 43K(1)(a) of the ERA 1996 allows a whistleblowing claim to be brought by a worker, not only against an employer but also against an end user, if the terms of the contract are ‘substantially determined’ by the end user or both the end user and the employer. 

The Employment Tribunal Judge interpreted this to mean that the NHS Trust would have had to determine the majority of the terms, or the more significant ones, on which the nurse worked. The Employment Tribunal found that it was the agency which substantially determined the terms on which the Claimant was engaged to work, not the NHS Trust and accordingly dismissed the Claimant’s claim.

However the Employment Appeal Tribunal (EAT) held that this was the wrong approach. The Employment Tribunal had failed to consider the possibility that both the agency and the end user had substantially determined the terms. It was not necessary for the Claimant to show that the NHS Trust determined any such terms to the same or a greater extent than the agency; merely that the NHS Trust substantially determined the terms on which she was engaged to do the work. A comparison between the agency and the end user is not necessary. The extended definition of worker was enacted primarily to protect agency workers provided to an end user and should be interpreted accordingly.

The EAT also clarified that the fact that an individual may be a section 230(3) ERA 1996 ’worker’ in relation to the agency does not prevent that individual from being a worker under the extended definition in section 43K(1)(a) of the ERA 1996 in relation to the end user.

Comment 

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.  It is clear from the EAT decision that where the terms of an agency worker's assignment are drawn from contracts with multiple parties, it is not necessary to undertake a detailed assessment of which terms are derived from which party under section 43K(1)(a)(ii) ERA 1996.