In the case of McTigue v University Hospitals Bristol NHS, the Employment Appeal Tribunal (EAT) concluded that an agency worker that made a disclosure to its hirer could be a whistleblower, and therefore should be afforded the protection that such a position requires. Ms McTigue was an employee of an employment agency which supplied her to the respondent in this case. After Ms McTigue made a disclosure about malpractice to the respondent, her assignment was terminated. She argued that this was an unlawful detriment consequent upon her disclosure, which would require her to show that despite the fact that she was employed by the agency and not the respondent, she could still qualify as a whistleblower.
As well as her employment agreement with the agency, unusually, Ms McTigue had a contract with the respondent, dictating areas such as standards of behaviour and adherence to certain policies. S43K of the Employment Rights Act 1996 allows a whistleblowing claim to be brought by a worker against an end user if the terms of their contract are substantially determined by the agency, end user or both. The EAT held that the Employment Tribunal had failed to consider whether both parties had determined Ms McTigue's terms, and so the case was remitted back to the tribunal to consider this point.
What Should Employers Do Next?
Treat disclosures by agency workers in the same way as you would from your own employees and ensure that no retaliatory actions are taken against them.