The EAT has held that an agency worker was entitled to whistleblowing protection against an end-user as she was a "worker" under the extended definition in section 43K of the Employment Rights Act 1996.

The extended definition of "worker" applies only to the whistleblowing provisions of the ERA 1996. It was included to protect agency workers and was specifically intended to provide whistleblowing protection for health workers in England, Scotland and Wales, where the NHS has contractual arrangements in place that mean such workers do not fall within the standard definition of "worker" under section 230(3) of the ERA 1996.

Section 43K(2) of the ERA 1996 provides that in respect of an agency worker, the "employer" includes "the person who substantially determines or determined the terms on which he is or was engaged..."

Ms McTigue was employed by an agency, TMS Ltd (TMS), and was assigned to work as a nurse for the University Hospital Bristol NHS Foundation Trust (the Trust) in a sexual assault referral centre. She had a written employment contract with TMS on their standard terms. She was also subject to the Trust's standard contract which required her to cooperate with the Trust in relation to health and safety, clinical governance and working time and also identified the supervisor under whom she would work.

Ms McTigue was removed from the assignment in December 2013 and brought whistleblowing claims against TMS and the Trust in relation to the protected disclosures she had allegedly made to the Trust and the detriment she claimed to have suffered as a result.

The Employment Tribunal ruled that it did not have jurisdiction to hear Ms McTigue's claim as she was not a "worker" under the standard definition or the extended definition that applies to whistleblowing. Ms McTigue appealed to the EAT.

The EAT allowed the appeal. The Employment Tribunal had erred in concluding that the Trust could not have substantially determined the terms on which Ms McTigue worked for TMS, because TMS had done so. The EAT held that the definition allowed for both the end-user and the agency, or either of them, to have substantially determined the individual's employment terms. Thus, the Employment Tribunal should have considered whether TMS and the Trust both substantially determined the terms on which Ms McTigue worked at the referral centre. The case was remitted to a fresh Employment Tribunal.

This EAT decision confirms that, depending on the extent to which the agency and end-user have both determined the terms under which the individual is engaged to work for the end-user, an agency worker may bring a whistleblowing claim against the agency, the end-user or both.

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