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Case law: Agency client's terms agreed with agency worker meant the worker could bring whistleblowing claim against the client

End user clients taking on an agency worker should be careful which additional terms to impose on the worker, in addition to the terms in the worker's contract with the agency - otherwise they risk facing a whistleblowing claim, following a recent ruling.

Legal Alert

This update was published in Legal Alert - September 2016

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

A worker had a contract of employment with an agency. She was given work in a medical centre run by an NHS Trust - the 'end user' in a worker/agency/end user relationship. She signed a separate agreement with the Trust which said who her supervisor would be and how she should report any sickness absence, and gave the Trust a right to dismiss in certain circumstances.

She was removed from this placement and claimed it was because she had made 'protected disclosures', ie because she was a whistleblower. If this was correct, her removal was unlawful.

The law allows a worker to bring a whistleblowing claim against an end user only if the terms of the worker's contract are 'substantially determined' by the end user, or both the end user and the agency. The Trust argued that it could not have substantially determined her terms, because the agency agreement with her had done that.

The Employment Appeal Tribunal disagreed, and found that both the agency and the end user trust had substantially determined her terms. She was a worker for the purposes of the relevant law and could, therefore, bring the whistleblowing claim.

Operative date

  • Now

Recommendations

  • End user clients taking on an agency worker from an agency should be careful which additional terms they impose on the worker, in addition to the terms in the worker's contract with the agency, or risk the worker being able to bring a whistleblowing claim against them

Case ref: McTigue v University Hospital Bristol NHS Foundation Trust [2016] UKEAT 0354_15_2107

Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.