Whistleblowing – meaning of worker

The Public Interest Disclosure Act 1998, or more commonly called the Whistle blowing Act, creates two levels of protection for whistle blowers.

The dismissal of an employee will be automatically unfair if the main reason, for dismissal is that they made a “protected disclosure”. The Act also protects and employee for being subjected to any detriment on the ground that they have made a protected disclosure.

The definition of “worker” under the Whistle Blowing Act is wider than the definition under the Employment Rights Act 1996. However, the recent case of McTigue v. University Hospital Bristol NHS Foundation Trust has highlighted just how widely the courts are willing to apply the definition.

The Definition of “worker”
A “worker” is defined by section 230(3) ERA 1996 as: “an individual who has entered into or works under (or, where the employment has ceased, worked under) –
a contract of employment; or
any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.”

However, under section 43K ERA 1996, the usual definition of worker is extended in relation to the whistle blowing provisions to include a number of individuals who would not otherwise be covered. This additional definition includes agency workers and individuals supplied via an intermediary.

The case was helpful in some guidance on how to determine whether an individual is a worker within section 43K(1)(a)

A number of questions that should be addressed when determining whether an individual is a worker within section 43K(1)(a) are helpful such as:
– For whom does or did the individual work?
– Is the individual a worker as defined by s.230(3) in relation to a person or persons for whom the individual worked? If so, there is no need to rely on s.43K in relation to that person.
– If the individual is not an s.230(3) worker in relation to the respondent for whom the individual works or worked, was the individual introduced/supplied to do the work by a third person, and, if so, by whom? If so, were the terms on which the individual was supplied to do the work determined by the individual? If the answer is yes, the individual is not a worker within s.43K(1)(a).
If the answer is no, were the terms substantially determined (i) by the person for whom the individual works or (ii) by a third person or (iii) by both of them?

If any of these is satisfied, the individual does fall within the subsection.
In answering question (e) the starting point is to look at the the contract. Also look at the agency contract.

If the company alone mainly determines the terms on which the individual worked in practice (whether alone or with another person who is not the individual), then the company 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).

Key points from this case: an agency worker may be able to bring a whistle blowing claim against an end user, provided that the terms of engagement are not substantially determined by the worker himself/herself; and that the fact that an individual may be a section 230(3) worker in relation to the agency does not automatically prevent that individual from being a worker under the extended definition.

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