Sarah Fraser Butlin acts in whistle-blowing case that re-ignites worker status debate


Rachel Barrett considers the recent decision McTigue v University Hospital Bristol NHS Foundation Trust, in which the President of the Employment Appeal Tribunal has given important guidance on the application of whistle-blowing provisions to agency workers.

Sarah Fraser Butlin of Cloisters represented the NHS Trust in this latest case to consider the scope of “worker” status.

The claimant is a nurse who was employed by an agency (“the Agency”) and placed to work at the respondent NHS Trust (“the Trust”). She sought to bring a claim for protected disclosure detriments (“whistle-blowing”) against the Trust under the Employment Rights Act 1996 (“ERA”). Under the ERA statutory framework, only employees and workers are eligible to bring such claims against their employers. The Employment Tribunal found that the claimant did not come within these categories and struck out her claim. The claimant appealed to the Employment Appeal Tribunal.

The claimant’s case was that she was employed by the Trust for the purposes of bringing a whistle-blowing claim because she fell within the extended definition of “worker” at s.43K(1)(a) ERA, namely:

…an individual who is not a worker as defined by section 230(3) who—

(a) works or worked for a person in circumstances in which—

(i) he is or was introduced or supplied to do that work by a third person, and

(ii) the terms on which he is or was engaged to do the work are or were in practice substantially determined not by him but by the person for whom he works or worked, by the third person or by both of them…”

The Trust responded that Employment Tribunal was correct to find that it had not “substantially determined” the terms of the claimant’s engagement, given that in large part her terms were determined by her supplying Agency. The Trust further argued that because the claimant was undoubtedly a worker (as defined by s. 230(3) ERA)  in relation to the Agency, she could not also be a worker of the Trust for the purposes of s. 43K; that extension only applies to “an individual who is not a worker as defined by section 230(3)”.

Simler J noted that s. 43K was enacted primarily in order to secure whistle-blowing protection for agency workers who do not have a contractual relationship with the end user. She held that the relevant comparison is to consider whether the individual or the supplier / end user substantially determines the terms of engagement. The section specifically envisages that the terms may be substantially determined by both the supplier and the end user, in which case both would be an “employer” of the individual. The starting point is to examine the contractual documents.

The judgment provides (at §38) a helpful step-by-step framework for analysing whistle-blowing cases brought by agency workers in future. The ultimate point is that:

If the respondent alone (or with another person) substantially determined the terms on which the individual worked in practice (whether alone or with another person who is not the individual), then the respondent is the employer within s.43K(2)(a) for the purposes of the protected disclosure provisions. There may be two employers for these purposes under s. 43K(2)(a) ERA 1996.”

Simler J concluded that in Ms McTigue’s case the Employment Tribunal had erred by comparing how substantially the Agency and the Trust had each determined her terms of engagement in order to ascertain which had principal responsibility. The Tribunal had also focussed on the terms of the claimant’s employment with the Agency and failed to give sufficient weight to the terms of her honorary contract with the Trust.

The Judge further held that the opening words of s. 43K – “… an individual who is not a worker as defined by section 230(3)…” – mean that the provision is only engaged where an individual is not a worker within s. 230(3)               in relation to the respondent in question. Therefore, just because the claimant was employed by the Agency under s.230(3), did not preclude her from also being a worker of the Trust under the extended definition at s. 43K.

This decision can be contrasted with another recent “worker” status case, Day v Lewisham and Greenwich NHS Trust [2016] IRLR 415, EAT. A fuller discussion of Day can be found here; Cloisters’ Chris Milsom represented the claimant. In summary, it concerned a junior doctor who claimed to have been treated detrimentally by Health Education England (“HEE”) after making public interest disclosures. He was employed by Lewisham and Greenwich NHS Trust but HEE arranged his training placements, paid part of his salary, and reviewed his progress. Like Ms McTigue, Mr Day claimed that he was a worker in relation to HEE under the extended definitions at s.43K(1)(a) ERA. Langstaff J (the immediate past President of the EAT) upheld the Employment Tribunal’s decision to strike out Mr Day’s claim. Two points of his analysis in particular can be contrasted with that in McTigue:

  1. Langstaff J considered (at §37-38) that “If the section [47K] had been intended to add a category of employer against whom a person might act in addition to others who were his employer, there would be no need for the words “who is not a worker as defined by Section 230(3) ””. In his view, it would not be possible to be an employee or worker of one employer under s. 230, and simultaneously a worker of another employer under s. 47K. In other words, “those who are workers within Section 230(3) should adopt the route of complaint set out in Section 43C – 43H but have no, and need no, additional protection against those who are more peripheral to their employment”. This is at odds with the position in McTigue, in which the claimant may (depending on the future factual findings at the remitted ET hearing) prove to be employed by the Agency under s. 230(3) and the Trust under s. 47K.
  2. Langstaff J further held that “In this context, “substantially” means “in large part”” (§40). This is not necessarily inconsistent with McTigue, but does give rise to some conceptual difficulty. It is apparent from the words “or by both of them” in s. 47K(1)(a)(ii),  and is emphasised in McTigue, that more than one body can “substantially” determine the individual’s terms of engagement. The phrase “in large part” tends to suggest that determination of a majority of terms is required. Langstaff J explained at §41 “The sense is most likely to be that the person for whom the Claimant works and the third person who has supplied his services are combining jointly: but it may be that they do not have to be.” However, it is difficult to envisage how two different employers could at the same time determine the “large part” of a worker’s terms, unless collaborating to jointly determine them. Simler J’s analysis is differently nuanced: she considers that because both can substantially determine the terms “there is no room for an interpretation of s.43K(1)(a)(ii) based on who determined “the majority of the terms” or “the most significant terms” as between the agency supplier and the end user” (§22).

Any tension between the two decisions may be resolved on further appeal: the unsuccessful appellant in Day is currently seeking permission from the Court of Appeal.

Cloisters has significant expertise in advising and representing organisations and individuals in all aspects of equality and discrimination as well as employment law.