Employment Law Update - protection under whistleblowing legislation

Published: 19/08/2016

The Employment Appeal Tribunal (EAT) has clarified the meaning of ‘worker’ under the whistleblowing provisions of the Employment Rights Act 1996, confirming that an agency nurse working for a NHS Trust was protected.

McTigue v University Hospital Bristol NHS Foundation Trust, EAT

Facts

Ms M, a nurse, was employed by an agency (on their standard agency terms) and was assigned to work at a centre operated by the respondent, a NHS Trust. She was also subject to certain terms issued by the Trust, relating to their working practices. Following her removal from the assignment, Ms M brought detriment claims based on protected disclosures that she had made to the Trust.

An employment tribunal found that it had no jurisdiction to hear the claim because Ms M was not a ‘worker’ within the extended definition under the whistleblowing legislation. This was decided on the grounds that her terms of employment were principally determined by the agency, not the Trust (against which the claim was pursued).

EAT decision

The EAT upheld Ms M’s appeal, finding that the tribunal had misinterpreted the extended definition of ‘worker’ in the whistleblowing provisions. This definition had been included in the legislation with the primary intention of protecting agency workers in the healthcare sector. It was irrelevant whether the agency or the end-user (the Trust) determined the terms of her engagement, or whether they both did. The key requirement of the definition was that the worker themselves did not determine the terms of their own engagement.

The case was remitted to be re-heard by a new tribunal.

Consequences

This case confirms that where the terms of an individual’s assignment originate from multiple sources, it is not necessary to determine which terms derive from which party for the purpose of deciding whether they are protected under the whistleblowing provisions. Whilst it might be important in determining against whom an individual can bring a claim, the EAT confirmed that an individual could have two ‘employers’ for this purpose.

The case highlights the breadth of the protection afforded under the whistleblowing
legislation.

The content of this article is for general information only. For further information regarding whistleblowing legislation, please contact a member of Birketts' employment team. Law covered as at August 2016.

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