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are agency workers protected if they blow the whistle?

29 July 2016
The definition of ‘worker’ under the Whistleblowing legislation is already much wider than in other areas.  But to what extent are end users of employment agencies liable for whistleblowing claims made by agency workers? 

In McTigue v University Hospital Bristol NHS Foundation Trust the EAT held that  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. 

In this case the agency (TMS Ltd) and end user (The NHS Trust) together were found to have satisfied this condition and both were deemed ‘employers’. In reaching this conclusion the EAT considered:
  • The claimant was subject to the Trust’s standard form contract, specifying her supervisor and requirements to cooperate with the Trust’s policies in health and safety, clinical policy and working time The contract also reserved the Trust's right to terminate the contract for any reason that might jeopardise the quality of patient care;
  • However, TMS Ltd was responsible for her pay, benefits, disciplinary procedures and termination provisions.
The EAT confirmed that an agency worker is not excluded from claiming whistleblowing protection from the end user they are placed with.  This means that an agency worker can be a ‘worker’ for both the agency and the end user at the same time. Therefore, the claimant could proceed with her whistleblowing claim against the Trust (her claim against TMS Ltd was discontinued).

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