Labour & European Law Review Weekly Issue 485 31 August 2016
When deciding whether an agency worker can bring a whistleblowing claim, the Employment Appeal Tribunal (EAT) in McTigue v University Hospital Bristol NHS Foundation Trust held that if both the agency and the end user substantially determined the terms of the agency worker’s engagement, they could be a worker of both the agency and the end user.
Ms McTigue worked under a standard contract of employment as a forensic nurse for an agency, Tascor, which placed her at a medical centre known as the Bridge. The centre was operated by the Trust, which issued her with a standard contract requiring her to cooperate in relation to issues of health and safety, clinical governance and working time. It also gave the Trust the right to terminate the contract.
After she was removed from this placement, Ms McTiigue brought a claim that she had made a protected disclosure to the Trust which had then subjected her to a detriment, including her removal from the Bridge. She initially brought her claim against both Tascor and the Trust, but discontinued her claim against the agency.
Section 43K(1)(a)(ii) of the Employment Rights Act states that a worker can bring a whistleblowing claim if the terms on which they were engaged to do the work were in practice “substantially determined” by the person for whom they worked (the Trust) by a third person (the agency) or by both of them.
The tribunal held that the burden was on Ms McTigue to show on the balance of probability that the terms on which she worked for Tascor were in practice substantially determined by the Trust.
It found as a matter of fact that the agency operated the disciplinary and grievance procedures applicable and was liable for any payment due to Ms McTigue. The agency was also responsible for authorizing or requiring overtime. Tascor and the Trust agreed uniform requirements and that Ms McTigue would wear a name badge quoting her place of work as “the Bridge” indicating that the Trust wished to hold her out as part of the team. Tascor and the Trust co-operated over holiday and time off arrangements and the tribunal found that in this context terms were a matter for cooperation between them. The Trust also played a part in the decision to remove Ms McTigue from the contract.
Following these findings, the judge concluded that as the Trust only determined a minority of the terms governing Ms McTigue’s employment, it could not be said to have “substantially determined” terms for the purposes of section 43K(1)(a)(ii). It concluded that she was not therefore a worker and dismissed her claim.
The EAT held that the tribunal asked itself the wrong question when trying to decide Ms McTigue’s status as a worker. Instead of putting the onus on Ms McTigue herself, it should have looked at whether the Trust as the end user substantially determined the terms on which she was engaged to carry out work at the medical centre. Instead, it more or less disregarded the honorary contract as something which only gave a “small measure of control” to the Trust.
The judge was also wrong to consider whether it was the Trust that had substantially determined the terms of the Tascor contract. Instead it should have focused on the extent to which the Trust (as opposed to Ms McTigue) had determined the terms of her contract at the Bridge.
If both the agency and the Trust substantially determined the terms of her engagement, she could be a worker of both the agency and the Trust. It therefore remitted the case to another tribunal to be heard again.
Whilst this was a fact sensitive case Mrs Justice Simler, President of the EAT, provides useful guidance at paragraph 38 of the judgement as to how best to approach this complex area of law which is worthy of consideration.