The employment status of an agency worker, and their consequent rights, has been a much-tested question and it has recently come to the fore again in the context of whistleblowing. It is important that organisations who use agency workers know about a recent EAT ruling that agency workers may be allowed to bring whistleblowing claims directly against the organisations where they physically work rather than solely against the agency. This is the EAT case of McTigue v University Hospital Bristol NHS Foundation Trust.
What were the facts in this case?
The Claimant was an agency nurse who was dismissed from her assignment, she said, because she had made protected disclosures. The employment tribunal said that the claimant could not bring a whistleblowing claim against the NHS Hospital Trust which operated the clinic where she actually worked, because she was not their employee or worker. The EAT said that the tribunal had been incorrect in reaching this conclusion; the agency worker may have worked for her agency, but she also worked for the NHS Hospital Trust, which had a substantial degree of control over the work she did and the way she carried out that work. In a departure from earlier decisions, the EAT found that an agency worker could be employed by both the agency and the end user for the purpose of whistleblowing legislation.
What does this means for you?
If you engage agency workers you must make sure that they are within the scope of your whistleblowing policy, and that any protected disclosures they may make are dealt with in the same way as if it were made by your own employee. In other words, the matter should be investigated and escalated as appropriate and you must ensure that the whistleblower is not treated to their detriment by management or other staff for having made the disclosure. To do otherwise runs the risk of an agency worker bringing a claim against your organisation.
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