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Chambers & Partners
29/07/2016

The Former and new President of the EAT: are the decisions of Day and McTigue reconcilable?

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There are two aspects to these decisions that are important.  First is the interpretation of s. 43K(1)(a)(ii) and the meaning of “substantially determined”.  Second is the effect of the words “not a worker as defined by section 230(3)”, in particular where there may be dual responsibility for a detriment or dismissal.  It may help you to pull out the section when you read this article.

 

Day v Lewisham and Greenwich NHS Trust and Health Education England [2016] IRLR 415, 9th March 2016 concerned a claim a training doctor, supplied by Health Education England (‘HEE’), to work for Lewisham in a training post as a specialist registrar in ACCS Emergency Medicine.  He claimed to have had his training post terminated because of a protected qualifying disclosure.  A preliminary hearing was held to determine whether Day was a worker for HEE under the extended definition of s.43K, as the putative employer, so as to hold them to account for their alleged role in his termination.  The following focus is therefore only HEE and s.43K.

The Tribunal decided it was arguable Day met the requirements of Section 43K(1)(a)(i), but held he did not meet the terms of (ii).  Day argued that the terms on which he was engaged to do the work were in practice not substantially determined by him, and this assertion was accepted by HEE.  However, s43K(2)(a) also requires that the Respondent (who is the putative employer before the Tribunal) must be the person who “substantially determines or determined” the terms on which he is or was engaged. On the facts of the case, Day had failed to offer any clear factual basis for asserting that his terms were in fact determined by HEE.  Further he accepted that the terms governing the training of doctors set out in the "Gold Guide", (namely the 2013 Reference Guide for Post Graduate Specialty Training in the UK) and it was not suggested that HEE was responsible for that Gold Guide. In those circumstances the ET found that the terms relating to his training had not determined by HEE. As for the performance of clinical duties, HEE successfully argued that the documentary evidence showed that it was Lewisham who were substantially responsible for determining his terms and conditions of work.

The Honourable Mr. Justice Langstaff on appeal before the EAT accepted a purposive approach to the interpretation of the protection for whistleblowers should be taken, he held that this did not entitle a Court to thereby ignore the words of the legislation.  He considered the various extensions provided for under 43K and held that: 43K(1)(a) applies to agency workers, who whilst not employees, are to be treated as such. 43K(1)(b) is concerned with contractors.  That 43K (ba) to (cb) specifies diverse categories within health service bodies.  43K(1)(d) he accepted [para 36] would include “a person who might be such as an intern, or possibly on a sandwich course, though both these suggestions are hesitant ones, or someone who could be described as an "atypical worker".  However, whichever category the putative worker sought to fall within, they cannot be a worker defined by s.230(3).  This was held because s43K(1) provides that “’worker’ includes an individual who is not a worker as defined by section 230(3)” (my emphasis). Mr. Justice Langstaff was unpersuaded that the inclusion of this requirement was a “belt and braces” approach and construed it as a condition precedent to a claim under s.43K.

Turning to the position of HEE he said “44. [Day] was not its employee, nor its worker. He was at the material time a worker for Lewisham. In so far as his complaint arose out of that work he could not, therefore, claim protection under Section 43K. If forensic illustrations are to be drawn this is not a case of a gap within the boundaries of protection, but a case in which the relationship falls well outside those boundaries” (my emphasis).  It would be remiss not to point out that Day is currently being Appealed to the Court of Appeal and it is understood that this will be heard in November 2016.

 

Ms. M. McTigue v University Hospital Bristol NHS Foundation Trust UKEAT/0354/15/JOJ  is the decision of the incoming president of the EAT, Mrs. Justice Simler DBE, promulgated on 21 July 2016.  McTigue is a nurse who was supplied by an agency to work at UHBFT. Probably inspired by Day, a preliminary hearing was held to determine whether she was caught under the extended definition of s.43K or excluded by the above condition precedent.  She had by the date of her hearing discontinued her claim against the agency, leaving only UHBFT as the putative employer.

The Tribunal at first instance struck out McTigue’s claim on the basis that UHBFT were not caught by s.43K(1)(a) because UHBFT did not “substantially determine” the terms on which she was engaged, having determined that this required the putative employer to determine the majority of or the most significant terms of the terms upon which she was engaged.

On the facts, McTigue entered into a written contract with her agency dealing with remuneration, holiday, sick, maternity, pension, discipline, grievance procedures and notice, amongst other matters.  The Tribunal found that these formed “a picture of a normal contractual arrangement as between an employer and employee”.  In addition, McTigue was provided with an Honourary Appointment with UHBFT, in a simple and unsigned form – but importantly it authorized her to carry out the duties of and practice as a Forensic Nurse Examiner.  It also identified her supervisor and provided other terms such as requiring that supervisor to be informed of absences.

Mrs. Justice Simler noted that the Tribunal, whilst it had not made specific reference to it, had held that it was common ground that UHBFT had substantially determined the terms of the Honorary contract, but that the Tribunal did make other specific findings as to how her work was managed and organized by UHBFT including such matters such as her uniform and badges.  Not insignificantly it had also found that UHBFT had played a part in the decision to remove her.

There was no dispute between the parties that the Claimant satisfied s. 43K(1)(a)(i) because of the agency.  The dispute centered on s. 43K(1)(a)(ii) and who substantially determined the terms upon which she was engaged.

Where there are two parties (such as an agency and principal), does this require the Respondent to be the one who determines the majority of the terms or just the more significant ones, or is it to be interpreted in another manner?

Mrs. Justice Simler held that s.43K(1)(a)(ii) expressly recognizes that there can be more than one party who substantially determines the terms and any attempt to limit the putative employer to they who determined the majority of those terms is wrong.  Further she held this did not require a qualitative assessment of the terms, but a focus on whether or not they were determined by the party and the extent to which they were so determined.  She therefore approved the phrase from Day that the question is whether the terms of employment were “in large part” determined by the putative employer.   The Tribunal had therefore erred in its construction and any requirement that “substantial” means “majority” was wrong in law.  Further reference to the fact that the Claimant could have presented a claim against the agent was also wrong, as in the circumstances of the case, because the focus of the case was actually upon the acts or omissions of a UHBFT employee, for whom the agency had not vicarious or other liability.

Mrs. Justice Simler therefore rejected the argument that “substantially” meant more than minor or trivial.  To this end, the case is consistent with and applied Day.

The decision provides a useful commentary on the protection (paragraphs 19 to 22).  Succinctly in paragraph 22, Mrs. Justice Simpler notes “there is no room for an interpretation of s.43K(1)(a)(ii) based on who determined “the majority of the terms” or "the most significant terms” as between the agency supplier and the end user.  Where two parties (other than the individual) have between them determined the terms upon which an individual worked but have done so to different extents, each might nevertheless have substantially determined the terms”.

Accordingly, it is clear from this that both an agent and principal, can be putative employers, under s. 43K.

As for the need to reconcile these two decisions, they are in fact consistent on this point.  In Day, it was held that the HEE did not substantially determine the terms upon which he was engaged, in contrast, with McTigue, it was held that UHBFT did.

 

Turning to the second, perhaps more important ground for practitioners formulating, presenting or responding to claims, is the effect of s43K(1) and the words “not a worker as defined by section 230(3)”.  At first glance there appears to be an inconsistency between Day decision and McTigue. In paragraphs 37 to 38, Day determined that it is a condition precedent that the worker is not caught by s.230(3) for s.43K to apply.  At first blush, the use of these words by Parliament must have been intended to ensure that there were not two routes for a putative worker against a putative employer.  It was argued in McTigue that the effect of Day is that if a putative worker is caught by s.230(3) with regard to any other employer, then they cannot bring a claim under s.43K against another putative employer.

This argument was squarely addressed by Mrs. Justice Simler in McTigue at paragraphs 26 and 27 of the decision.  As the claim in McTigue was only (because it had been withdrawn) against UHBFT, and as a matter of fact they were not and could not be the employer pursuant to 230(3), then the condition precedent wording arising from s.43K(1) was not engaged.  Whilst UHBFT tried to argue that the fact that McTigue was a s.230(3) worker for the agency meant she could not present a claim against UHBFT, was met on two grounds.  Mrs. Justice Simler pointed first to paragraph 38 of Day, in which Mr. Justice Langstaff stated “The purpose of this part of the Act is to extend the meaning of worker to a limited category of other relationships.  It is, plainly, to give them a route to remedy which they might not otherwise have (the agency worker, for instance, is likely to be neither an employee nor worker in respect of the end user under whose control the work would normally be performed). That purpose is fulfilled.”  If the effect of Day is to mean that in an agency relationship the fact that if the putative worker is a worker for the agent, this means they cannot bring a claim against the principal, this point was clearly considered by paragraph 38 and it was clearly held in Day that they could.  Secondly, the purpose of the legislation was clearly intended to extend the reach of protection and the McTigue interpretation is consistent with that purpose.  The reading of the words “who is not a worker as defined by section 230(3)” is limited to the construction that they must not be “a worker” for the same putative employer, is a proper interpretation and supported by Day (paragraph 38 in particular).  To assert that the condition precedent mean that a claim against a principal cannot be presented because of the status of the relationship with the agent, goes too far.

It is perhaps neatly summarized as this.  Imagine Bob has two jobs, during the day he works in a department store as an employee, by night as a driver supplied by an agency.  If Bob was to bring a claim against the principal for whom he worked as a driver, the interpretation suggested by UHBT would mean that the fact Bob was an employee in the department store would prevent him from bringing a claim.  That would seem absurd and such an interpretation would be rightly dismissed.   The statutory words need to be construed on the basis of the claim being presented and so the context is important.  On the facts of Day, because HEE did not substantially determine the terms upon which Day was engaged, no claim could be presented under s.43K.

Conclusion: In an agency relationship, where there are two potential respondents to a claim, because of the extension available, care needs to be taken to focus on the organization that is actually responsible for the detriment/disclosure.  Following the decision in McTigue, it is possible that both the agent and the principal are caught by section 43K(1)(a)(ii), but it is also possible that the agent may be caught by s.230(3) and thus not by s.43K.  If it is the agent who is considered to be the proper respondent to the claim, then care needs to be taken to perhaps argue 230(3) and 43K in the alternative.

The potential danger is where the putative worker seeks to present a claim against both the agent and the principal, where once the facts are determined it may be that a claim can proceed against one under s. 230(3) but may cause an argument that this alone prevents another respondent from being held to account under s.43K.

It is my judgment that whilst each of those claims may be factually intertwined, each specific claim should in fact be considered discreetly and neither should prevent the other from being pursued at any preliminary hearing, as the actions and motivations of any putative employer cannot be properly assessed summarily, only so after hearing the evidence.

Once all the evidence has been heard, the putative employer can be determined and whether they are so due to s.230(3) or s.43K can be determined on the facts of each case, but it would be wrong in law to find that both routes can be established for the same putative employer.

There remains an argument, not without merit, that the purpose of the words “who is not a worker as defined by section 230(3)” goes further and would exclude a claim against A, if a the claimant is a worker of B, but it is my view that the decision in McTigue is consistent with Day and should be relied upon to enable claims, regardless as to any relationship with another – so claims against principals may be presented even if a claim against an agent may be presented under s.230(3), especially so where the principal is required to account for a detriment or dismissal.  Where it is intended to present against both, focus should be maintained on who is actually responsible, because in McTigue that focus was rightly upon the employee of UHBFT and factually explains the basis of the decision.

If you still remain confused, luckily you can instruct me or one of my colleagues to advise on the specific facts of your case.

employment law, day, mctigue, workers rights, employment tribunal

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