Whistleblowing: who can claim?
Many employment rights and protections apply to employees only. However, whistleblowing legislation provides much broader protection.
Many employment rights and protections apply to employees only. However, this is not the case with whistleblowing legislation, which provides much broader protection and covers workers engaged under many different arrangements.
In the recent case of McTigue v University Hospital Bristol NHS Foundation Trust the Employment Appeal Tribunal clarified the scope of whistleblowing legislation in relation to agency workers and the test to apply to determine who such an individual can validly pursue a claim against.
Two categories of protection
Broadly speaking, the Public Interest Disclosure Act 1998 protects individuals who reveal information about malpractices by their employers or third parties (‘protected disclosures’) from being punished for having done so.
The Act has two categories of protected ‘whistleblowers’. Firstly employees and employee shareholders (an uncommon type of employment status where employees are given shares in return for giving up some employment rights) are protected. A dismissal will be automatically unfair and any detriment the employee is subjected to unlawful, if the reason, or principal reason, for it is that the employee has made a protected disclosure.
Secondly, the Act protects workers from being subject to any detriment on the ground that they have made a protected disclosure.
Who is a worker?
The ordinary definition of the term ‘worker’ covers any individual who works (or formerly worked) for an organisation under an express or implied contract to personally provide services, provided that they are not genuinely in business ‘on their own account’(s230(3) Employment Rights Act 1996).
However, the term ‘worker’ is defined more widely in relation to whistleblowing than in relation to many other employment rights. It includes a number of individuals who might not otherwise be covered, such as home workers, police officers, and (most notably) agency workers (s43K Employment Rights Act 1996). In a healthcare context, the net is cast especially widely. Self-employed doctors, dentists and other self-employed healthcare professionals working in the NHS, including those working via an agency will be protected, as will student nurses and midwives.
Where an individual is supplied by a ‘third person’ (such as an employment agency) the Tribunal must be satisfied both that the employee is or was introduced or supplied to do that work by a third person and also that their terms and conditions of 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’.
McTigue: the facts
The Claimant in this case, Mrs McTigue, was an agency nurse, employed by Tascor Medical Services Ltd and assigned to work at University Hospital Bristol NHS Foundation Trust.
She had a written contract of employment with Tascor on their standard agency terms. Tascor operated all disciplinary and grievance procedures and was responsible for her pay and overtime.
She was also given the Trust’s standard ‘honorary’ contract which contained an absence notification procedure and required her to co-operate with the Trust regarding health and safety, working time and specific clinical governance issues. This contract also allowed the Trust to terminate the engagement if any concerns about patient care arose.
Mrs McTigue was removed from her assignment in December 2013 and alleged that she had been subjected to detriment because of protected disclosures she had made to the Trust. She originally brought claims against both Tascor and the Trust but discontinued her claim against Tascor. She sought to press on against the Trust.
The Employment Tribunal that first heard the case rejected her claims on the basis that she was not a ‘worker’ of the Trust under either the ordinary or extended definitions.
As Mrs McTigue had been employed by a ‘third person’ (Tascor) the ET looked carefully at whether she herself or the person for whom she worked ‘substantially determined’ her terms and conditions. The Judge held that Mrs McTigue was employed by Tascor and that the Trust was the ‘end user’ of her services. Tascor determined the majority of her terms and conditions and the Trust only a minority. As the Trust did not ‘substantially determine’ her terms and conditions she could not bring a whistleblowing claim against it. Mrs McTigue appealed to the EAT.
The EAT disagreed with the Tribunal’s decision and allowed her whistleblowing claims to progress.
It held that the correct comparison was between the extent to which the individual determined her own terms of engagement and the extent to which they were determined by somebody else (i.e. the agency or end-user). If the individual ‘substantially determined’ their own terms, they would not be a worker and would not benefit from whistleblower protection.
An analysis of the extent to which the agency and end-user each determined the individual’s terms and conditions was not necessary. Both could play a part in setting the terms and conditions and both could be the individual’s employer for the purposes of whistleblowing legislation.
This decision makes it even more likely that an agency worker, provided by a third party but working within your business, could pursue a whistleblowing claim against you.
The Judgment suggests that even where your ‘control’ over the individual (in terms of determining the terms and conditions under which they work) is quite limited, they may still be found to be a ‘worker’ for the purposes of whistleblowing legislation. It is inevitable that you will want or need to set out at least some parameters for an individual to observe while they are working with you.
However, this case sits uneasily alongside another recent whistleblowing decision, Day v Lewisham NHS Trust, which held that to ‘substantially determine’ terms and conditions meant to do so ‘in large part’. This suggests that some analysis of the degree of control exercised by various parties is in fact needed. A further appeal decision may be needed to compare these two Judgments and clear this up.
This decision reminds us all that whistleblowing legislation is deliberately drafted broadly to protect a wide spectrum of working people. Generally, a Tribunal will be mindful of the purpose of the legislation and will look to enable a whistle-blower to have the case heard rather than deny them that opportunity.
There is no financial cap on compensation in whistleblowing claims and no qualifying requirement of a minimum period of service. For these reasons, we often see whistleblowing complaints included by claimants alongside other employment claims even where the link to any protected disclosure is quite tenuous. It is also important to remember that whistleblowing claims can be brought by individuals who no longer work for you.
Determining an individual’s employment status and deciding whether they might qualify for whistleblower protection can be complex and often depends on the contractual and practical working arrangements for that person. We are always happy to help by talking through the particular circumstances of any potential case you may have.
Emlyn Williams (firstname.lastname@example.org) is a Partner in the Employment, Pensions and Immigration Team and is based in Liverpool. Emlyn specialises in advising healthcare clients on a full range of employment issues including whistleblowing. If you have any questions please get in touch with Emlyn or speak to your usual Weightmans contact.