Whistleblowing – extending definition of ‘worker’

In the case of Keppel Seghers UK Ltd v Hinds UKEAT/0019/14/JOJ the Employment Appeal Tribunal (“EAT”) upheld the Employment Tribunal’s decision that an agency worker who worked through a service company was entitled to whistleblowing protection.

Mr Hinds was employed as a health and safety adviser working within the construction and civil engineering sector. He provided his services through his own company CSM. He was the sole director, shareholder and employee. He was placed with a company involved in the construction of energy recovery facilities KS, via a recruitment agency FR. He was not hired directly by KS but by FR which in turn had a contract with CSM.

Mr Hinds commenced employment tribunal proceedings against KS alleging that the company had subjected him to a detriment on the ground that he had made a protected disclosure. KS opposed the claim on the basis that he was not a worker. The Tribunal did not agree. Although Mr Hinds has no direct contractual relationship with KS, he had been introduced to KS through an agency and the fact that his engagement was through his own company did not alter the reality of the situation. The whistleblowing legislation was not intended to extend to the genuinely self-employed but in this case Mr Hinds was controlled by KS in the performance of his work. KS wanted his services and it was supplied with those services. KS appealed.

The EAT confirmed that the purpose of the whistleblowing legislation was to protect individuals who made protected disclosures. It was therefore appropriate to adopt a broad interpretation of the legislation in order to provide the protection rather than deny it. What mattered was whether the worker had been introduced or supplied to the employer and who in turn decided the terms of engagement. The EAT held that the Tribunal were entitled to conclude that the recruitment agency FR had introduced Mr Hinds to KS as an individual contractor, notwithstanding that his services were supplied through his own limited company.

Comment: For the purposes of the protected disclosure provisions, s.43K of the Employment Right Act 1996 (“ERA 1996”) extends the meaning of “worker” to include any individual who is not covered by the section 230(3) definition but who works for a person in circumstances in which he was introduced or supplied to do work for the third person and the terms on which he is engaged to do the work as substantially determined not by him but by the person for whom he works. So the person who determines the terms of engagement is the employer.

Therefore, where a worker provides services through a limited company, of which he is the sole director and shareholder, he may well have protection under the whistleblowing provisions of the ERA 1996.

If you would like to discuss a whistleblowing matter, please contact our employment solicitors on 0207 956 8699 or info@rllaw.co.uk. We regularly advise clients on whistleblowing claims and assist businesses defend claims made by employees.