In the recent case of McTigue v University Hospital Bristol NHS Foundation Trust the EAT clarified that agency workers can bring detriment claims against end users provided the end user (on its own or in conjunction with the agency) has substantially determined the terms of the worker’s engagement.
Ms McTigue was an agency worker employed by Tascor Medical Services Ltd (Tascor) and assigned to work for University Hospital Bristol NHS Foundation Trust (the Trust). She brought whistleblowing detriment claims against the Trust following her dismissal.
To be entitled to bring such a claim, Ms McTigue needed to show that she was a ‘worker’ and that the Trust was her ‘employer’. For this type of claim, the law allows an extended definition of worker which includes individuals who have the terms of their engagement substantially determined by the person for whom they work, a third person or by both of them. In such a situation, the law states that the ‘employer’ can be the person who substantially determines the terms of engagement.
The employment tribunal identified the terms of Ms McTigue’s engagement and set out who, it considered, had determined each of these. It concluded that because the majority of terms had been determined by the agency, it could not be said that the Trust had ‘substantially determined’ the terms of engagement.
In overturning this decision, the EAT made clear that the law allows for two parties to jointly determine the worker’s terms. It said that the “tribunal erroneously focused on who determined the substantial terms when it should have been focused on whether the [Trust] and Tascor both substantially determined the terms on which the Claimant was engaged to do the work”. The case was remitted to a new tribunal to determine if, on the facts, this test was met.
It will often be the case that end users determine some of the terms of a worker’s engagement (which can be in writing, oral or implied) and, thus, end users need to be mindful that they may have liability for detrimental acts related to whistleblowing. Further, the EAT made clear that the fact that the agency worker may have another route open to them (i.e. to bring a claim against the agency) will not preclude them from bringing a claim against the end user. It’s important to, therefore, ensure staff are adequately trained on the standards expected of them.
Our team of employment lawyers are always on hand to assist you with compliance and Forbury People are trained HR consultants who can also assist with training and the implementation of whistleblowing policies and procedures. For further information please contact firstname.lastname@example.org