In the case of McTigue v University Hospital Bristol a whistleblowing claim was brought by an agency nurse against the medical centre she had been placed in by the agency. When Ms McTigue was removed from her position she brought claims against the University Hospital ("the Respondent"), which was an NHS Trust, for detriment arising from her making a protected disclosure.
Ms McTigue was employed under a contract of employment by the agency. The employment tribunal found that this contract painted a picture of a normal contractual arrangement as between employer and employee. Ms McTigue was also issued with an Honorary Appointment by the Respondent which was also in standard terms. That document reserved the right of the Respondent to terminate the Honorary Appointment for any reason or cause that might jeopardise continuity of care for patients.
The Tribunal found that the Respondent substantially determined the terms of the Honorary Appointment. The agency operated the disciplinary and grievance procedures relevant to Ms McTigue and was responsible for paying her. The agency and the Respondent were both involved in agreeing holiday time off and both played a part in the decision to remove Ms McTigue.
The Employment Rights Act 1996 allows for a whistleblowing claim to be made not only against the employer but also the end user, and an extended definition of "worker" had been enacted specifically to provide protection to agency workers provided to an end user. This is possible only where the end user, or the end user and the employer together, substantially determine the terms of the contract of employment. The Tribunal found that the Respondent had not substantially determined the terms of the contract and dismissed the claim.
The EAT, however, disagreed and found that the Tribunal had not considered the possibility that both the agency and the Respondent (the end user) had substantially determined the terms. As such Ms McTigue could bring a claim against the respondent.