Member Article

Agency workers blow the whistle

With Watson Burton LLP Law Firm

As well as receiving employment protection by virtue of section 230 of the Employment Rights Act 1996 (“the Act”), the Employment Appeal Tribunal have now ruled that the definition of worker under section 43K of the Act brings an agency worker within the remit of the whistleblowing legislation enshrined in Part IVA of the Act. This legislation protects workers who make protected disclosures within the meaning of the Act.

The Facts: Mr Croke, the Claimant, worked as a consultant engineer for Hydro Automotive Systems UK Limited. The Claimant had set up his own limited company, Amerstar, which contracted via the agency Huxley Associates Limited, to provide work for Hydro. A contract existed between Huxley and Amerstar, and one between Huxley and Hydro; there was no contract between Hydro and the Claimant, a point which the EAT upheld on appeal.

The Claimant alleged that he had been dismissed by Hydro because he made a protected disclosure under section 43B of the Act in relation to a failing by Hydro to comply with a legal obligation owed to Aston Martin.

The Tribunal Decision: The Claimant would be protected from such detriment if he could prove he was a worker under section 43K and entitled to protection under the whistleblower legislation. A worker under section 43K is someone who “was introduced or supplied to do that work by a third person”. The Tribunal decided that the Claimant had not been “supplied” to work for Hydro since he had contracted through Amerstar (not as an individual) and so he did not qualify for protection.

**The EAT Decision :**The Claimant argued that the Tribunal had not considered whether he had been “introduced”, only whether he had been “supplied”.

The EAT agreed that the Tribunal had not considered this part of the definition and they concluded that the Claimant had been “introduced”: Huxley already had the Claimant’s CV on file (crucially, a personal document and not one issued by Amerstar), which they sent to Hydro in response to Hydro’s request for candidates to do work of a particular kind. The Claimant was also interviewed by Hydro before being offered work.

The EAT reconsidered the question of whether the Claimant had been “supplied”; they concluded that, in reality, he had been supplied and so qualified for the protection of the legislation.

If you have any queries in relation to this article, or any other employment matter, please contact Lucy Bond at Watson Burton LLP on 0113 235 5455 or email lucy.bond@watsonburton.com.

This was posted in Bdaily's Members' News section by Ruth Mitchell .