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Agency workers blowing the whistle: time to revisit the scope of protection?

Recent EAT decisions involving healthcare professionals demonstrate tensions in the interpretation of the extended definition of “worker” for the purposes of whistleblowing protection.

Agency workers

Under the whistleblowing legislation, the ordinary definition of worker in section 230(3) of the Employment Rights Act 1996 (ERA 1996) is extended to include individuals who would not otherwise be covered (section 43K, ERA 1996). This includes individuals supplied by an intermediary, provided the terms of their engagement are substantially determined by the putative employer or intermediary (or both).

McTigue v University Hospital Bristol NHS Foundation Trust

The EAT considered the scope of this provision in McTigue v University Hospital Bristol NHS Foundation Trust UKEAT/0354/15.

An agency nurse, employed by an agency under a contract of employment, was assigned to work for an NHS Trust. She also entered into an “honorary contract” with the Trust which included terms relating to her supervision, clinical governance and absence notification procedure. She brought detriment claims alleging that she had made protected disclosures to the Trust. An employment judge held that the Trust was not the putative employer for the purposes of section 43K because it did not substantially determine many of the terms under which she worked.

The EAT (Simler P) disagreed and held that where an individual has been supplied by an intermediary to an end-user, a comparison must be made of whether it is the individual on the one hand or the intermediary or end-user on the other that determines the terms of engagement. Both the intermediary and end-user may determine the terms, so a worker may have two employers for the purposes of whistleblowing protection. Section 43K did not require an assessment of who determines the majority of the terms or the most significant terms.

The Trust’s submission that the extended definition of worker only covers individuals who do not fall within the usual worker definition in relation to any party was rejected. The fact that the nurse was an employee of the agency within the meaning of section 230(3) did not preclude her from also being a worker of the Trust under section 43K.

Day v Lewisham and Greenwich NHS Trust and another

The approach in McTigue can be contrasted with the earlier EAT decision in Day v Lewisham and Greenwich NHS Trust and another UKEAT/0250/15.

A junior doctor was placed by Health Education England (HEE), the statutory training body, into a training post with an NHS Trust. HEE continued to review his progress and pay a sizeable proportion of his salary. The doctor brought claims against the Trust and HEE after making protected disclosures to both. He argued that HEE acted like an employment agency and, given the purposive approach required by Article 10 of the ECHR, was caught under the provisions of section 43K. An employment judge disagreed, holding that HEE did not substantially determine the terms of his engagement.

The EAT (Langstaff P) agreed with the judge. While it was possible for a putative employer and agency to substantially determine the terms of an engagement jointly, “substantially” means “in large part” and HEE had not determined the terms under which the doctor worked, in large part or otherwise.

The legal reasoning in this case contrasts with McTigue: it suggests that an assessment of the degree of control exercised by each party over the individual is required. Arguably, this is not necessitated by the provisions of section 43K.

Furthermore, Langstaff P held that the extended definition of a worker only applies to an individual who does not fall within the usual definition of a worker. If Parliament had intended to extend liability to bodies other than employers, there would have been no need to include this carve-out within the legislation. Therefore, the doctor could not argue that he worked for HEE under section 43K, as he was an employee of the Trust under section 230(3). In this respect, Simler P’s reasoning departs from that of Langstaff P, who does not appear to have considered workers in fragmented relationships in reaching his conclusion. It is suggested that Simler P’s reasoning should be preferred.

Next steps

There are clear tensions between McTigue and Day. The extent to which analysis is required of a putative employer’s degree of control over the terms of engagement is particularly unclear. This is unhelpful for businesses and workers alike. Permission to appeal is being sought in Day, which may resolve this tension.

For the time being, an individual may have two employers for the purposes of whistleblowing protection. Businesses using agency workers may be found to be an employer, even if they have little control over the individual in question. Accordingly, they should ensure that whistleblowing policies cover agency workers.

Parliament may review the extended definition in due course. Langstaff P disagreed with the contention that the narrow construction of section 43K created a lacuna in whistleblowing protection; rather, this was a case of Parliament carefully delineating the scope of protection.

However, this delineation arguably runs contrary to the government’s commitment to eradicate the “climate of fear” surrounding whistleblowing within the NHS, following Sir Robert Francis QC’s Freedom to Speak Up review. If the Court of Appeal holds that HEE is not a putative employer of junior doctors, then there is an argument that Parliament should expand the scope of protection to cover detriments by training bodies.

Devereux Marianne Tutin

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