A recent EAT case can make it easier for a whistleblower who is an agency worker to claim against the end user.
In McTigue v University Hospital Bristol NHS Foundation Trust, a Forensic Nurse Examiner was employed by an agency and supplied to an NHS Trust. Both the agency and the Trust determined part of the terms on which she worked.
She sought to make a whistleblowing claim against the Trust. Under the terms of the legislation about agency workers, this required (broadly) that she show that the Trust substantially determined the terms on which she was engaged.
The EAT held it was perfectly possible that both the agency and the Trust might be bodies which substantially determined these terms. To claim against the Trust, she did not have to show that the Trust determined ‘the majority of the terms’ or ‘the most significant terms’.