The Employment Appeal Tribunal (EAT), which hears appeals from Employment Tribunals, has ruled that a Health and Safety Consultant was a legally protected ‘worker’ for the purposes of the whistleblowing legislation, despite not having the benefit of an employment contract. Workers are protected, and entitled to compensation under the legislation, if they have been subjected to a detriment and they can show that it was because they made a protected disclosure, in other words they disclosed some wrongdoing by the business.
As was agreed to be commonplace in the industry, the Consultant’s engagement by an energy recovery business had been arranged by an employment agency and he had provided his services through a one-man company. He had no direct contractual relationship with the business.
After he launched proceedings, claiming that he had been subjected to detrimental treatment for making a protected disclosure, he faced arguments that he did not fit the definition of a ‘worker’ within the meaning of the Employment Rights Act 1996 (ERA). Those submissions did not persuade an Employment Tribunal and the Consultant was permitted to proceed with his claim.
In dismissing the business’s appeal, the EAT noted that the underlying purpose of the ERA was to provide protection to whistleblowers and others who are not formally employed. It was the will of Parliament that such protection should be afforded, rather than denied, wherever that could properly be achieved.
It was the business that largely dictated the terms and conditions under which the consultant worked. He had been ‘sourced’ as an individual who met the business’s requirements; he had viewed himself as an integral part of its workforce and he did not have the right to nominate another to work in his place.
The ruling has opened the way for the Consultant to pursue his claim to a full hearing.
This decision extends the scope of the whistleblowing legislation to those who for all intents and purposes are self-employed and therefore significantly strengthens the hand of workplace whistleblowers. The decision is also a good example of the courts and tribunals taking a purposive approach to legislation.