The Employment Appeal Tribunal has found that an agency worker may be able to bring a claim under whistleblowing laws against the end user organisation where that agency worker has been placed to work.

In McTigue v University Hospital Bristol NHS Foundation Trust, the claimant is a nurse who was employed by an agency and placed to work at the respondent NHS Trust, an assignment which was governed by an honorary contract which named a supervisor who should be contacted in the event of absences and required that she adhere to the Trusts rules on confidentiality and corporate governance etc. The claimant made disclosures (blew the whistle) to the Trust and was shortly after removed from her post.

She brought claims of detriment due to whistleblowing against the Trust, however, the Employment Tribunal decided that, as an agency worker, she was not entitled to make that claim under the current law. The law protects employees and workers, and the ET declared that she was neither.

When she appealed to the Employment Appeal Tribunal, the Trust attempted to rebut the claim by asserting that they did not “substantially determine” the terms on which the Claimant was engaged. In order to be protected by the law, it must be established that the agency worker’s terms of engagement were “substantially determined” by the end user, in this case the Trust.

The EAT held that where two contracts exist, both contracts can “substantially determine” the terms; it is not a case of which is the main determiner of the terms. The original tribunal had made a mistake by simply asking whether the Trust substantially determined the terms – the answer to which it found was ‘no’; it should have asked whether both the agency and the Trust had substantially determined them. The case has been sent back to another tribunal to look at this point.

Lead Care Advice Consultant Lorna Stafford commented on this case: This case shows that employers would be unwise to consider that they have no other obligations towards agency workers than simply those that apply under the Agency Workers Regulations 2011. Different pieces of legislation have different definitions of who is protected and this case reflects the wide scope of whistleblowing laws.