Last week, in McTigue v University Hospital Bristol NHS Foundation Trust, the Employment Appeal Tribunal (EAT) ruled that an individual who was supplied by an agency to provide services to an end-user could claim whistleblowing protection against that organisation. This was the case even though the individual had signed a contract of employment with the supplier agency. In the EAT’s opinion, it is possible to be employed by two employers and, as it was the agency and the end-user (and not the individual worker) who substantially determined the terms under which the individual would work, both could be the employer for the purposes of whistleblowing protection.
Whether an agency worker can benefit from whistleblowing protection will therefore require a detailed analysis of the three-way relationship between the individual, the supplier 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.
Following the EAT’s 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.