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Agency Worker Can Bring Whistleblowing Claim Against End-User Client

The Employment Appeal Tribunal (EAT) has held that an agency worker may bring a whistleblowing complaint against an end-user in his or her capacity as a ‘worker’, despite the fact that the individual is also an ‘employee’ or ‘worker’ in relation to the agency.

In the recent case of McTigue v University Hospital Bristol NHS Foundation Trust, Ms McTigue was employed by an agency, Tascor Medical Services Limited (TMS), which supplied her to work as a Forensic Nurse Examiner at a Sexual Assault Referral Centre operated by, amongst others, University Hospital Bristol NHS Foundation Trust (the Trust). 

Ms McTigue had a written contract of employment with TMS under which the agency was responsible for paying Ms McTigue, entitlement to paid holiday, sick pay and maternity leave, pensions, company disciplinary and grievance procedures and notice to terminate.  However, Ms McTigue was also subject to the Trust’s standard form contract, which named a supervisor under whom she would work and required her to cooperate with the Trust in relation health and safety, clinical governance, and working time.

In December 2013 Ms McTigue was removed from the engagement and subsequently brought claims against the Trust based on protected disclosures she had allegedly made and claiming that she was subjected to detriments by the Trust.

The Employment Tribunal held that it had no jurisdiction to hear Ms McTigue’s claim against the Trust because she was not employed by it as a ‘worker’, either under the standard definition in the Employment Rights Act or the extended definition which applies specifically to whistleblowing claims. Ms McTigue appealed.

The EAT held that an agency worker’s ‘employer’ (for the purposes of a whistleblowing claim) can be both the agency and the end-user client in circumstances where both the agency and the end-user substantially determine the terms on which the individual is engaged to do the work. The case was therefore remitted to a fresh Employment Tribunal for consideration of whether both TMS and the Trust did in fact substantially determine the terms on which Ms McTigue worked at the Referral Centre.

Regardless of the conclusion that the Employment Tribunal draws on that point, the decision of the EAT makes it clear that, in claims of whistleblowing, an agency worker may bring a claim either against the agency or the end-user or both, depending on the extent to which both parties substantially determine the various terms under which the individual is engaged to work. 

 This bulletin is for general guidance purposes only and should not be used for any other purpose.

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