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Insight

Whistleblowing protection for agency workers clarified

27/07/2016
The whistleblowing legislation provides an extended definition of "worker" which was enacted to protect agency workers and workers in the health sector where the NHS's contractual arrangements mean such workers would not otherwise benefit from the protection given to whistleblowers.

The whistleblowing legislation provides an extended definition of "worker" which was enacted to protect agency workers and workers in the health sector where the NHS's contractual arrangements mean such workers would not otherwise benefit from the protection given to whistleblowers. 

 

The relevant statutory provisions that extend the definition of a "worker" for such purposes are complex and their interpretation was unclear.  In McTigue v University Hospital Bristol NHS Foundation Trust, the EAT clarified the circumstances in which an agency worker can claim whistleblowing protection against an end-user by virtue of the extended definition of "worker".  

 

Ms McTigue was employed by an agency, TMS Ltd, which provided her to work as a Forensic Nurse Examiner at a sexual assault referral centre operated by the Trust.  Ms McTigue had a written contract of employment with TMS Ltd and was engaged as its employee on its standard terms.  She was also issued with the Trust's standard form contract, which set out procedures she should follow and reserved the Trust's right to terminate the contract for any reason that might jeopardise the quality of care offered to patients.

 

After discussions with the Trust, Ms McTigue was removed from the engagement by TMS Ltd in December 2013.  She alleged that she had made protected disclosures to the Trust and brought an ET claim alleging whistleblowing detriment.

 

The ET Judge found that the tribunal had no jurisdiction to hear Ms McTigue's claim against the Trust because she was not employed by it as a "worker".  On appeal the EAT held the fact that an individual is an employee or worker of the agency does not prevent the individual from also being a "worker" in relation to the end-user.  Mrs Justice Simler DBE, the EAT President, helpfully set out a series of questions to address to determine whether an individual falls within the extended definition of a "worker" for the purposes of the whistleblowing legislation.  In particular, it depends on the extent to which the other parties to the engagement determine the terms on which the individual is engaged. Further, where those terms have been substantially determined by both the agency and end-user, both are the individual's employer for the purposes of the whistleblowing legislation.

 

Employers should therefore be mindful that the whistleblowing legislation extends to agency workers; review and update their whistleblowing policy to ensure that it covers agency workers; and ensure that agency workers do not suffer any detriment having made a protected disclosure.  If you would like to discuss the implications of this further or need assistance reviewing and updating your whistleblowing policy please do not hesitate to contact me or one of the team.

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