Case update (3): Whistleblowing – Extension of protection

Summary:  Can an agency worker claim whistleblowing protection against an end user?

Yes, says the EAT in McTigue v University Hospital Bristol NHS Foundation Trust available here, if the end user “substantially determines” the terms of the worker’s contract.

Facts:  Ms McTigue was employed by an employment agency which supplied her to University Hospital Bristol NHS Foundation Trust (the Trust), the ‘end-user’. Although Ms McTigue had an employment agreement with the agency, unusually, Ms McTigue also had a contract with the Trust. This contract with the Trust dictated areas such as standards of behaviour and adherence to certain policies.

After Ms McTigue made a disclosure about malpractice to the Trust, her assignment was terminated. She brought a Tribunal claim under the whistleblowing legislation and argued that the termination of her assignment was an act of unlawful detriment consequent upon her disclosure.  However, in order for her claim to proceed she needed to show that she could qualify as a ‘worker’ under the whistleblowing legislation, despite being employed by the agency and not the Trust.

In arguing her case Ms McTigue relied on s43K of the Employment Rights Act 1996 which allows a whistleblowing claim to be brought by a worker who is engaged on terms that are “substantially determined” not by the individual themselves, but by the person for whom they work, which may be an end user or agency or both.

The Tribunal held that Ms McTigue was not a ‘worker’ for the purposes of the whistleblowing legislation as it interpreted s43K to mean that the Trust would have had to determine the majority of the terms, or at least the more significant ones, on which Ms McTigue worked for the agency.  Ms McTigue appealed and the EAT overturned the Tribunal’s decision.  The EAT held that Ms McTigue could be a worker as s 43K focuses on identifying who, as between the individual and the other parties (the agency and the end user) substantially determines the relevant terms. If the individual substantially determines their own terms, they are not a worker under this provision. Where the agency and the end user determine the relevant terms between them, both parties might have “substantially determined” the terms, and there could be two employers for these purposes. It is not necessary to compare the extent to which it was either the agency or the end user who predominantly determined the terms.

Implications: Ultimately, whether an agency worker can benefit from whistleblowing protection will require a detailed analysis of the three-way relationship between the individual, the agency and the end user in order to decide who “substantially determines” the terms of the individual’s engagement. This will in most cases apply to the agency but, if it also applies to the end-user, whistleblowing claims may be brought against them directly.

In any event, following this decision, organisations which engage the services of agency workers should not presume that they are shielded from whistleblowing claims and should treat any agency worker who speaks out about wrongdoing in the workplace in the same, non-detrimental, way as any other member of staff.