Agency worker protected by whistleblowing provisions

In McTigue v University Hospital Bristol (UKEAT/0354/15/JOJ), the claimant was a forensic nurse examiner provided by an agency (Tascor) to provide services to victims of sexual assault in a centre run by an NHS trust. She claimed that she had suffered a detriment as a result of making a protected disclosure.

The EAT required to interpret s 43K(a) of Part IVA of the Employment Rights Act 1996: “For the purposes of this Part 'worker' includes... [someone who] (a) works or worked for a person in circumstances in which– (I) he is or was introduced or supplied to do that work by a third person, and (ii) the terms on which he is or was engaged to do the 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”.

The EAT overturned the ET and found that the claimant's work was substantially determined by the NHS trust, notwithstanding that elements were substantially determined by Tascor, and thus she was a worker for the purposes of the Act.