McTigue v University Hospital Bristol NHS Foundation Trust

For the extended whistleblowing definition of worker, an agency worker’s status against the agency does not prevent reliance on Employment Rights Act 1996 section 43K against an end user. The question is whether the worker, the agency, the end user, or both substantially determined the terms on which the worker was engaged to perform the relevant work. The court must compare the worker’s role with that of the other persons, not compare the agency’s influence with the end user’s influence. Both agency and end user may substantially determine the terms and may therefore both be employers for section 43K purposes. The inquiry must begin with the relevant contract or contracts, including written, oral and implied terms, and may require assessment of whether written terms reflect the practical relationship.

The claimant was employed by Tascor Medical Services Limited and supplied to work as a forensic nurse examiner at the Bridge Sexual Assault Referral Centre, operated by the respondent and others. She alleged that the respondent subjected her to detriments, including removing her from the engagement, because she made protected disclosures.

The Employment Tribunal struck out the claims for want of jurisdiction. It held that the claimant was not the respondent’s worker under section 43K(1)(a), reasoning that the respondent had determined no more than a minority of the terms and that the claimant could pursue Tascor. The appeal concerned the construction and application of section 43K(1)(a)(ii), including whether the claimant’s employment by Tascor excluded reliance on the extended definition against the respondent.

1. Appeal allowed. The Tribunal’s decision was set aside and the case was remitted to a fresh Employment Tribunal for reconsideration.
2. Section 43K provides an extended meaning of worker for Part IVA whistleblowing claims. The opening words exclude reliance on section 43K only where the individual is already a section 230(3) worker in relation to the respondent in question. Being an employee or worker of an agency does not prevent reliance on section 43K against an end user for whom the individual also works.
3. Once the individual has been supplied by a third person, the question under section 43K(1)(a)(ii) is whether the individual substantially determined the terms of engagement or whether the person for whom the individual worked, the third person, or both substantially determined them. The statute does not require the end user to determine the majority or the most significant terms, or to determine them to the same or a greater extent than the agency.
4. Where both agency and end user substantially determine the terms, both may be employers under section 43K(2)(a). The inquiry concerns the terms on which the individual was engaged to perform the relevant work, rather than simply the terms on which the individual worked for the agency.
5. The starting point is the relevant contract or contracts. These may be between the individual and agency, individual and end user, and agency and end user. Terms may be written, oral or implied, and written terms may need to be tested against the practical reality. The Tribunal erred by disregarding the respondent’s Honorary contract, making a qualitative comparison between the agency and respondent, failing to consider whether both substantially determined the terms, and treating the claimant’s possible remedy against Tascor as relevant.
6. Applying Sinclair Roche & Temperley v Heard, remission to a different Tribunal was appropriate because the factual findings had been reached through an erroneous legal approach.

1. Employment Appeal Tribunal: allowed the appeal from the Employment Tribunal’s judgment, set aside the decision, and remitted the case to a fresh tribunal.
2. Employment Tribunal: struck out the protected disclosure victimisation claims for want of jurisdiction, holding that the claimant was not the respondent’s worker under section 43K(1)(a).