An Employment Appeal Tribunal decision has demonstrated how individuals can be protected against victimisation for making protected disclosures even if they do not qualify as workers or employees. In this case a health and safety adviser was entitled to bring a whistleblowing claim even though he had no contractual relationship with either the end-user or the agency which supplied his services.
The EAT was looking at a pretty elaborate provision of the Employment Rights Act which extends the protection of our whistleblowing legislation to a number of categories of people who would not otherwise qualify as workers. This includes people who are introduced or supplied by third parties in circumstances where the terms on which they are engaged are “in practice substantially determined” by either the third party or the person for whom he or she works. The EAT emphasised that the use of the words “in practice” meant that employment tribunals should look beyond the contractual documents to the way in which the relationship has arisen and has been governed.
So in this instance, the fact that the claimant’s services were engaged via a personal service company, which in turn contracted with the employment agency, did not prevent him from bringing a claim. Even though his name was not mentioned in the agreement between the agency and the end-user, it was clear from the surrounding circumstances that he was in effect being introduced as an individual to do the work. It was also clear that the user of the service in practice determined the terms upon which he was engaged – for example by requiring him to report to a named individual.
This case goes further than previous case law on contract workers who blow the whistle, and comes just a month after the Supreme Court’s ruling that members of limited liability partnerships are protected. While the Government has recently ruled out any major extension to the scope of our whistleblowing legislation, our courts seem increasingly willing to interpret its existing provisions in a way that is generous to would-be whistleblowers.