Do your agency staff have whistleblowing protection?

Whistleblowing protections are wide, deliberately wide: employees and workers of many types are protected from being punished for exposing or raising their concerns. The recent EAT decision in McTigue v University Hospital Bristol NHS Foundation Trust confirms that agency workers, even those employed by their agency, may well have direct whistleblowing protections from the actions of the end user for whom they work.

 

Background

Mrs McTigue was an agency nurse employed by the Tascor Medical Services Agency and assigned to work at University Hospitals Bristol NHS Foundation Trust. She was employed on Tascor’s standard terms. Tascor were responsible for disciplinary and grievance matters but she was also given an “honorary” contract with the Foundation Trust. That honorary contract contained Trust absence notification procedures and a variety of her duties and obligations.

Having been removed from her assignment at the Foundation Trust, Mrs McTigue alleged that this was a detriment/punishment for having previously made protected disclosures (whistleblowing), directly to the Trust. She brought claims for this against Tascor and the Trust but later chose only to pursue her claims against the Foundation Trust.

 

Findings

The Employment Tribunal found that Mrs McTigue had been an employee of Tascor, the agency. They found that Tascor determined the majority of her working terms and conditions and because of this, the claims against the Foundation Trust were dismissed. As an agency worker, the statutory whistleblowing protections were found to only apply where the ‘employer’ substantially determined those terms and conditions. As Mrs McTigue’s employer was Tascor, her claims against the Trust (the end user) could not proceed.

The Employment Appeal Tribunal disagreed. They allowed Mrs McTigue’s substantive whistleblowing claims to continue against the Foundation Trust.

The Employment Appeal Tribunal instead found that both the agency (Tascor) and the end user (the Trust) could be responsible for determining the agency worker’s terms. The Trust was responsible for some of Mrs McTigue’s terms and so she was eligible to bring her whistleblowing claims against the Trust. This was despite her expressly being an employee of the agency.

 

Comment

Organisations widely using agency staff may be surprised/concerned by this case. Particularly, given the right to terminate an agency worker’s assignment is an essential ingredient of the agency relationship.

This case follows a line of previous cases which expand or permit, as a public policy, wide protections against detriments or punishments being applied to whistleblowers. As a result, even if your agency staff are employees of another organisation altogether (as Mrs McTigue was), those agency staff may well have whistleblowing protections against you, the end user.

Consequently users of agency staff should keep in mind that the reasons for terminating an assignment (or any other form of detriment) may be scrutinised as part of a whistleblowing claim.

 

Click here to read our newsbrief in full.

Full articles: In a nutshell…; When can ETs strike-out whistleblowing claims?; A study in creative writing = more rights for students; How protected are Protected Conversations?; How to keep on track with flexible working requests; Pay protection can be a reasonable adjustment