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Tribunal Decision Reinforces Agency Workers’ Rights

PLEASE NOTE: Information in this article is correct at the time of publication, please contact DFA Law for current advice on older articles.

In a guideline decision which reinforced the rights of agency workers, a tribunal has underlined in the context of an NHS whistleblowing case that it is legally possible to have one job but more than one employer.

A forensic nurse was employed by an agency to work at an NHS centre where sexual assault victims were medically examined. She launched Employment Tribunal (ET) proceedings against the NHS trust which ran the centre, claiming that she had been victimised for making a protected disclosure.

Her written contract of employment was with the agency, which paid her. The agency also authorised her overtime and operated the disciplinary and grievance procedures that applied to her. In those circumstances, the ET struck out her claim on the basis that the agency, not the trust, was her employer.

In upholding her challenge to that decision, the Employment Appeal Tribunal (EAT) found that the trust was her ‘employer’, and that she was its ‘worker’, within the extended meaning given to those words by Section 43K(1)(a)(ii) of the Employment Rights Act 1996.

Noting that the provision was specifically designed to protect those in her position, the EAT found that the agency, as supplier, and the trust, as end user, each had a substantial role in determining the terms on which she was engaged to work at the centre. The case was sent back to a fresh ET for reconsideration in accordance with the EAT’s ruling.

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