1. Section 43K provides an extended meaning of 'worker' and 'employer' for the purposes of Part IVA ERA 1996 only and has no wider application. It was enacted primarily to protect agency workers provided to an end user in circumstances where the worker could not fulfil the stricter 'limb (b)' requirements of s.230(3) by virtue of the absence of a sufficient contractual relationship with the end user. Its introduction was also specifically designed to secure whistleblowing protection for workers in health services in England, Scotland and Wales where the NHS has contractual arrangements in place that mean such workers otherwise fall outside the s.230(3) definition of 'worker' for these purposes. The extended protection afforded in this regard is carefully identified and delineated (see s. 43K(1)(ba)(cb)). This appeal concerns the agency extension.

1. Once it is established that an individual has been supplied by a third party to work for another person, a comparison must be made between the extent to which on the one hand the individual determines his or her terms of engagement to do the work, and on the other hand, somebody else determines those terms in order to ascertain whether the terms of the worker extension in s.43K(1)(a)(ii) are fulfilled. If the individual substantially determines his or her terms in comparison with the others, they are not a worker under this provision. If the other person or persons substantially determine the terms, the individual is a worker for these purposes. The provision is focused on identifying who, as between the individual on the one hand and the other persons identified on the other, substantially determines the terms on which he or she is engaged to do the work. The question is answered by considering the situation as between the individual and the supplier, or the individual and the end user, or the individual and both the supplier and end user. A comparison between the supplier and the end user is not invited by the provision.

1. Since subsection (a)(ii) expressly envisages that there may be two persons who substantially determine the terms on which the individual is engaged to do the work (the person who supplies the individual and the person for whom he or she works) the same must inevitably be true in relation to s.43K(2)(a) which defines the 'employer' for these purposes. This provision defines employer as the 'person' (which, by this stage, cannot be the individual) who substantially determines or determined those terms. Since as a matter of ordinary statutory interpretation the singular includes the plural, if both the supplier of the individual and the person for whom the individual works substantially determine the terms on which the individual is engaged to do the work then both are the 'employer' of the worker for the purposes of this subsection.

1. Moreover, since both the supplier and the end user can substantially determine the terms and the subsection does not invite any comparison between how substantially the supplier of the individual determines the terms compared with how substantially the end user does so, 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.

1. In Day, in the context of protected disclosure victimisation claims by Mr Day against Health Education England ('HEE') (who supplied him to work at his employer, the NHS Trust) and against the NHS Trust, HEE applied to strike out the claim against it on various grounds. It was common ground that the terms on which he was engaged to do the work at the NHS Trust were not substantially determined by him. A tribunal found that there was no factual basis for his assertion that the terms of his engagement to work at the NHS Trust were in practice substantially determined by HEE. The Appeal Tribunal held that there was no error of law in that finding. In that context, the Employment Appeal Tribunal (Langstaff J) held at paragraphs 37 and 38 as follows:

"37. One feature, however, does cover all: that is that they cannot be a worker as defined by s.230(3). Mr Milsom had no satisfactory explanation for the presence of those words. The list that follows in 43K(1)(a)-(d) is subject to those introductory words. His submission that the words might be included as mere introductory expression or to provide 'belt and braces' does not suffice, for if a person is within 43K(1)(a) and is also an employee or a limb (b) worker, there is no need to extend the meaning to include him. If the section had been intended to add a category of employer against whom a person might act in addition to others who were his employer, there would be no need for the works 'who is not a worker as defined by section 230(3)'. They were intended to have a meaning. They have no additional force if construed as Mr Milsom would wish. Construed as Mr Siddall suggests, they apply a policy to the effect that those who are workers within s.230(3) should adopt the route of complaint set out in ss.43C-43H but had no, and need no, additional protection against those who are more peripheral to their employment. There is no reason in policy to include those who are tangential to the work which is relevant.

38. Accepting these submissions, as I do, does no violence to the principle of purposive construction. 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. It does not need the relevant introductory words to be written out."

1. The Respondent relies on that reasoning to submit that the opening words of s.43 K(1) ' "worker" includes an individual who is not a worker as defined by section 230(3) but who…' mean that the extended protection only applies where someone is not otherwise a worker under s. 230(3) irrespective of the identity of the respondent and the identity of the person with whom the worker has a s.230(3) worker relationship. In other words, if an agency worker has a s.230(3) 'limb (b)' worker contract with the agency, the agency worker is excluded from the extended protection available under s.43K(1)(a) vis à vis all others, including the end user. The agency may be insolvent and the end user vicariously liable for the detriments done to the individual in the course of working at the end user by its employees because of the protected disclosures, but no remedy is available. Ms Fraser Butlin accepts that this interpretation substantially reduces the protection the provision appears to have been intended to afford but submits that Parliament has specifically delineated the extended protection afforded and further submits that for purposes of clarity and certainty it is important that a worker knows who their employer is for the purposes of making a protected disclosure.

1. I do not accept this submission and do not consider that this is what the Employment Appeal Tribunal intended by paragraphs 37 and 38.

1. I accept that the opening words in s.43K(1) mean that the provision is only engaged where an individual is not a worker within s.230(3) in relation to the respondent in question. If he or she is such a worker there is no need to extend the meaning of worker to afford protection against that respondent.

1. However, an important purpose of s.43K is to extend cover to agency workers in relation to victimisation for protected disclosures made while working at the end user. This case exemplifies that situation. Although an employee of Tascor, the Claimant was supplied to work at the Respondent's Bridge centre with the Respondent's employees who were thus in a position to subject her to detriments after she made protected disclosures. It is against that treatment (if it is established) that she requires protection. The extended definition of worker in s.43K(1)(a) potentially provides it in respect of her claim against the Respondent. The fact that she has worker status in relation to the agency, Tascor, under s.230 and cannot accordingly rely on s.43K in relation to Tascor (and does not need to do so in any event so far as Tascor is concerned) is irrelevant in relation to her claim against the Respondent. She is not a s.230(3) worker in relation to the Respondent. The extended definition of worker provides a potential route to a remedy the Claimant would not otherwise have had as an agency worker who is neither an employee nor a limb (b) worker in respect of the Respondent end user for whom she carries out the work.

1. Moreover, this construction gives meaning to the introductory words of s.43K(1) which apply to all categories of worker identified at subsections (a) to (d) and is entirely consistent with the stated purpose of the provision. There is no resulting uncertainty or lack of clarity. An agency worker may complain to both the end user and the agency about matters of concern, as the Claimant did here, as both are potential employers for protected disclosure purposes.

1. This construction of s.43K(1) gives effect to Parliament's intentions as evidenced by the language of the provision having regard to the statutory and social context. It is unnecessary to resort to a purposive construction that would give an extended meaning of 'worker' beyond the legitimate reach of the subsection (whether because it is thought that the broad objective of the statute would be better effected by that approach or on some other basis).

1. In light of the conclusions I have set out above as to the proper construction of s.43K, and having regard to the way in which the Employment Tribunal applied the statutory provision to the facts in this case, I consider that the Employment Tribunal erred in law for the following reasons.

1. The starting point in addressing whether the Claimant or the agency (Tascor), the end user (the Respondent) or both substantially determined the terms on which she was engaged, should have been the terms of the engagement itself. As the Court of Appeal held in [Sharpe v Worcester Diocesan Board of Finance Ltd ]()[2015] ICR 1241, there must be a contract whose terms have been determined. The contract may be in writing or oral and terms may be implied. Further, there may be more than one relevant contract, and in relation to any express agreements it may be necessary to consider whether the terms reflect the reality of the engagement.

1. Here, contrary to the submission of Ms Fraser Butlin, there were at least two written contracts: one between the Claimant and Tascor and the other between the Claimant and the Respondent. There was almost certainly a contract between Tascor and the Respondent as well. But rather than examine the extent to which the terms of the Honorary contract (and/or any other terms agreed) were determined by the Claimant or the Respondent, and the extent to which such terms applied to the Claimant's engagement in practice, the Tribunal appears to have disregarded the Honorary contract as something which gave only a small measure of control to the Respondent, and this as "providers of accommodation" rather than as employers. This betrays a misunderstanding of the exercise the Tribunal was undertaking.

1. The Tribunal's misunderstanding emerges first at paragraph 13 where the Tribunal summed up the question to be addressed as follows:

"… the burden on this Claimant is to satisfy me on the balance of probability that (notwithstanding the contractual arrangement between her and Tascor) the terms on which she worked for Tascor were in practice substantially determined by the Trust."

That is not the correct question. It was not for the Tribunal to determine whether the terms on which the Claimant worked for Tascor were substantially determined by the Respondent, but to consider the terms on which the Claimant was engaged to do the work at the Bridge and whether or not the Claimant or Respondent had any role and if so to what extent in determining those terms.

1. Secondly, looking at the Tribunal's findings and reasons that follow as a whole, the Tribunal erroneously looked to see which entity (other than the Claimant) had principally determined the terms by seeking to make a comparison between how substantially Tascor determined the terms as compared with how substantially the Respondent did so. Nobody in this case suggested that the Claimant determined the terms of the contracts under which she worked. Moreover, this is a case where the Claimant had (at least) two sets of contractual terms and two parties had determined the terms of the written contracts under which the Claimant worked. Although in practice each might have done so to a different extent, that extent was plainly capable of being substantial in both cases nonetheless.

1. Thirdly, despite recognising that both the Respondent and another party could substantially determine the terms and that this possibility should also be examined (see paragraph 10) and despite finding that there was cooperation between the two bodies that worked together (paragraph 18) and that certain terms were a matter for cooperation between the Respondent and Tascor (paragraph 22) the Tribunal did not address this possibility in reaching its decision. Rather, at paragraph 30 it concluded that the Respondent determined no more than a minority of the terms but did so having made a false comparison between the Respondent and Tascor that sought to make a qualitative assessment of the terms in issue, attributing greater importance to some and disregarding other terms that ought not to have been disregarded. The Tribunal erroneously focused on who determined the substantial terms when it should have been focused on whether the Respondent and Tascor both substantially determined the terms on which the Claimant was engaged to do the work (even if to different extents).

1. Finally, in identifying both at paragraph 11 and 31 the fact that the Claimant had a route to remedy against Tascor but had discontinued that claim so that she was not a person who had no other organisation to pursue, the Tribunal had regard to an irrelevant consideration. Tascor and the Respondent are separate persons. Whether the Claimant had a claim against Tascor or not is irrelevant to the question whether she has a separate claim against the Respondent. In any event, as Mr England submits, Tascor had no vicarious liability for the detrimental acts or omissions of the Respondent's employees whilst she was working at the Bridge (s.47 B(1) ERA 1996), and it is unlikely on the facts of this case that those acts or omissions would be treated as done by the Respondent's employees as workers or agents of Tascor under s.47B(1A)(a) and (b) ERA 1996 (as amended by the Enterprise and Regulatory Reform Act 2013 with effect from 25 June 2013).

1. In light of these conclusions it is unnecessary to address separately the contingent cross appeal.

1. In conclusion in the hope that it will assist tribunals dealing with these issues, it seems to me that in determining whether an individual is a worker within s. 43K(1)(a) the following questions should be addressed:

(a) For whom does or did the individual work?

(b) Is the individual a worker as defined by s.230(3) in relation to a person or persons for whom the individual worked? If so, there is no need to rely on s.43K in relation to that person. However, the fact that the individual is a s.230(3) worker in relation to one person does not prevent the individual from relying on s.43K in relation to another person, the respondent, for whom the individual also works.

(c) If the individual is not a s.230(3) worker in relation to the respondent for whom the individual works or worked, was the individual introduced/supplied to do the work by a third person, and if so, by whom?

(d) If so, were the terms on which the individual was engaged to do the work determined by the individual? If the answer is yes, the individual is not a worker within s.43K(1)(a).

(e) If not, were the terms substantially determined (i) by the person for whom the individual works or (ii) by a third person or (iii) by both of them? If any of these is satisfied, the individual does fall within the subsection.

(f) In answering question (e) the starting point is the contract (or contracts) whose terms are being considered.

(g) There may be a contract between the individual and the agency, the individual and the end user and/or the agency and the end user that will have to be considered.

(h) In relation to all relevant contracts, terms may be in writing, oral and may be implied. It may be necessary to consider whether written terms reflect the reality of the relationship in practice.

(i) If the respondent alone (or with another person) substantially determined the terms on which the individual worked in practice (whether alone or with another person who is not the individual), then the respondent is the employer within s.43K(2)(a) for the purposes of the protected disclosure provisions. There may be two employers for these purposes under s. 43K(2)(a) ERA 1996.

1. For all of the reasons given above, I agree with Mr England that the Employment Judge erred in law in his approach to the question of extended worker status under s.43K(1)(a) and its application to the facts of this case. The appeal must accordingly be allowed, and the decision set aside.

1. The Claimant does not contend that the Appeal Tribunal should substitute its own conclusion for that of the Tribunal in the event that this appeal succeeds. Rather, Mr England submits that the issue should be remitted to a fresh employment tribunal because the findings of fact made by the Tribunal were made through a prism of erroneous statutory interpretation. The Respondent contends that the facts are fairly analysed by the Tribunal and any remission should be to the same Tribunal.

1. Whether to remit to the same or to a different tribunal is a matter for the discretion of the Employment Appeal Tribunal, exercised in accordance with criteria laid down in Sinclair Roche & Temperley v Heard [2004] IRLR 763. Having regard to these criteria, I have concluded that the most satisfactory course to adopt is to remit this case to a different tribunal to be heard afresh for the reasons given by Mr England. The Tribunal misunderstood the exercise it was required to undertake and the facts found were obtained on the basis of that erroneous approach. The exercise will have to be undertaken again. It may be possible for the parties to reach agreement in relation to undisputed facts but it is possible that further evidence and additional findings of fact will be necessary. It is unlikely in the circumstances that remitting the case to a fresh tribunal will add significantly to the time that would have been required for a hearing before the same Tribunal.

1. The appeal is accordingly allowed. The Tribunal erred in its approach to whether the Claimant is a worker within the meaning of s.43K(1)(a)(ii). The Claimant is not precluded from relying on s. 43K by her employment status under s.230(3) in relation to Tascor. Whether or not she is a worker under s.43K(1)(a) depends upon whether the Respondent (and not the Claimant) substantially determined the terms on which the Claimant was engaged to carry out work at the Bridge. 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 Bridge. If both Tascor and the Respondent 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.

1. The case is remitted to a fresh tribunal for reconsideration in accordance with this judgment.