Agency Staff Can Make Whistleblowing Claims Against End-Users

Recruiters are being advised to review indemnities in commercial contracts with clients, as well as their insurance policies, in response to a ruling by an employment appeal tribunal which means whistleblowers can bring claims against end-user clients.

The warning follows a ruling by the Employment Appeal Tribunal (EAT) in the case McTigue v University Hospital Bristol NHS Foundation Trust.

Whistleblower claimed detrimental treatment

The case centred on a forensic nurse examiner (McTigue) employed by a medical services agency that supplied staff to a centre operated by an NHS trust. Her contract of employment with the agency was on its standard terms and covered issues such as remuneration, paid holiday, sick pay, disciplinary and grievance procedures, and employment termination notice periods.

McTigue was removed from her assignment in December 2013 and she alleged this was because she had made whistleblowing disclosures to the trust. She brought claims against both the agency and the trust, claiming she was subjected to detrimental treatment as a result of blowing the whistle, including her removal from the assignment by the trust. She subsequently abandoned claims against the agency.

Case rested on definition of ‘worker’

The case before the employment tribunal rested on showing whether McTigue met the definition of a ‘worker’ and protected from dismissal and detrimental treatment under the whistleblowing legislation.

The tribunal ruled it could not hear McTigue’s claim because she did not meet either the standard or extended definition of ‘worker’ under the terms of the Employment Rights Act 1996 as the trust did not determine either the majority, or the most significant, of her terms.

McTigue’s subsequent appeal to the EAT was successful.

The Employment Rights Act 1996 states that both the supplier and the end-user can substantially determine the terms of the worker’s contract for the whistleblowing protection to apply.

There was no need for the employee tribunal to compare the two organisations and no need to consider which one substantially determined the terms of the contract.

McTigue was able to be a worker of the trust, at the same time as being an employee of the agency and continue with her claim, because both the agency and the trust could “substantially determine” the terms of McTigue’s engagement; both could still be employers for whistleblowing purposes. The starting point for tribunals was to consider the contracts terms themselves.

What needs to be considered in the light of the EAT decision

The case serves as a caution to organisations using agency workers, particularly those whose terms are determined by the client, that they could be considered workers and protected by the whistleblowing legislation.

The case demonstrates how agency workers can proceed with whistleblowing claims against the organisations actually using their services (i.e., the end-user), even if they are employed by an agency, provided the end-user substantially determined the terms upon which they were engaged.

The ruling by the EAT also confirms the definition of ‘worker’ is wider in relation to whistleblowing than in the usual sense in employment legislation. Both an agency and an end-user can be ’employers’ for the purpose of the whistleblowing legislation.

Shadow IT lets staff take data to new jobs

Thirteen per cent of employees in the UK, France and Germany admit to storing corporate data on personal devices on cloud applications with a view to whistleblowing or taking data to new employer, according to research by tech security firm Blue Coat which highlights the growing challenge of so-called ‘shadow IT.’ The research also indicates that 53% of employees are using cloud applications at work – but these are often not sanctioned by IT.

Whistleblowers still vulnerable

Whistleblowers are still at risk of being fired and harassed because the Public Interest Disclosure Act fails to shield employees and does not offer adequate compensation, according to the non-government organisation, Blueprint for Free Speech. The group says current laws require whistleblowers to be victimised before they can seek protection.

Employment

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