EAT Victimisation Discrimination : Whistleblowing – The Tribunal erred in its approach to whether the Claimant (a nurse supplied by an agency to work at an end user) is a worker within the meaning of s.43K(1)(a)(ii) of the ERA 1996. The Claimant is not precluded from relying on s.43K by her employment status under s.230(3) in relation to the agency, Tascor. Whether or not she is a worker under s.43K(1)(a) depends upon whether the Respondent end user (and not the Claimant) substantially determined the terms on which the Claimant was engaged to carry out work at the Respondent’s medical centre. It is not necessary for the Claimant to show that the Respondent determined any such terms to the same or a greater extent than Tascor did; merely that the Respondent substantially determined the terms on which she was engaged to do the work at the centre. If both the agency and the end user substantially determined the terms of her engagement, the fact that the Respondent substantially determined the terms of her engagement means that the Respondent is her ’employer’ for the purposes of s.43K(2)(a) ERA.
Simler DBE J P
[2016] UKEAT 0354 – 15 – 2107
Bailii
England and Wales
Employment
Updated: 20 January 2022; Ref: scu.567893
