Employment Appeals – Aug 2016

The Employment Appeals Tribunal has held that an agency worker is eligible to bring a claim in accordance with the whistleblowing provisions which protect workers from being subjected to any detriment on the grounds that they have made a protected disclosure.

Ms McTigue was employed by an agency and was assigned to work as a nurse at a sexual assault referral centre operated by the University Hospital Bristol NHS Foundation Trust. She had a written contract with the Agency on their standard agency terms and she was also given the Trust’s standard form contract which set our among other things, absence notification procedure and required her to cooperate in relation to issues of health and safety, clinical governance and working time.

Ms McTigue was removed from her assignment in December 2013 and brought a claim against the Trust and the Agency. The Claim against the Agency was discontinued.

At first instance the Employment Tribunal found that it could not hear the claim because she was not a worker. However, the Employment Appeal Tribunal overturned that decision. The Judge considered the whistleblowing legislation in this area and concluded that the primary focus was to protect agency workers and was designed to secure whistleblowing protection for health workers. It was also consider to the extent that agency workers do not determine their own terms of engagement and therefore should fall within these protections.

These case has clarified the law in respect of agency workers and who is has whistleblowing protection. If you use agency workers in your practice whether on a self-employed locum or employed basis, you should ensure you have the correct policies and procedures in place such as a Whistleblowing Policy to help you deal with any issues which may arise.