When it comes to explaining the importance of a new Employment Appeal Tribunal decision, there is nothing quite like a good story. However, the facts in McTigue -v- University Hospitals Bristol NHS Foundation Trust are rather dry and indeed nothing like a good story, so we shall settle instead for the (potentially really quite important) lessons to be taken from that case by employers.
In the broadest of terms, Ms McTigue was an employee of an employment agency which supplied her to UHB. She made a disclosure about malpractice to UHB, shortly following which it terminated her assignment. She wished to argue that this was an unlawful detriment consequent upon her disclosure, but that required her to show that even though she was not employed by UHB and was employed by the agency, she nonetheless qualified as a whistle- blower to UHB.
The EAT concluded that she did, relying on sections 43K(1)(a) and (2)(a) Employment Rights Act 1996. Together these provisions mean that an agency worker who makes a disclosure to a hirer (i.e. the agency’s client) will, for all practical purposes, be a whistle-blower (provided still that the disclosure passes the other tests, i.e. that the maker reasonably believes it to relate to – usually – a breach of a legal obligation and that it is in the public interest that it be made). That applies even if the worker is also a worker or employee of some other entity, such as the supplying agency, at the same time.
Lessons for users of agency staff
- Treat disclosures by agency workers in the same way as you would those of your own staff. It may even make sense to draw the attention of new agency staff expressly to your whistle-blowing policy so that you have a modicum of control over the channel through which whistles may be blown.
- Ideally this means being seen to treat disclosures reasonably seriously and not looking immediately for technical grounds on which they might be disqualified as protected. The longer and more obviously you spend time exploring reasons why the disclosure may not be protected, the greater will be the inference that you either have retaliated against the whistle-blower or intend to do so.
- Depending on the nature of the disclosure, consider involving the employing agency if it is more about that company than it is about you.
- Notify any of your own staff incriminated in that disclosure that you will not condone any impromptu retribution or retaliation on their part against the agency worker, any more than you would accept their doing so to one of your own employees. Ideally this should be in writing so that you can be seen to have taken reasonable steps to prevent that sort of response. Consider amending your policy to the same effect, and expressly to apply to agency workers.
- Remember that the line between reacting adversely to the disclosure and reacting adversely to the manner in which it is made, while real in law, is very thin in practice. It is often the case that disclosures (or grievances including disclosures) may be advanced in terms which seem aggressive or confrontational. This may be a product of nothing more than nerves or anxiety or fear, but it can still lead the hirer to the understandable but technically entirely misguided conclusion that the worker would be happier somewhere else. However, only if the manner of the disclosure is so poor as to be essentially serious misconduct in itself should any steps be taken by the hirer to, um, expedite the whistle-blower’s career options in this way.
- Most obviously, because then it does not matter whether the agency employee is your worker or whether what he has said is technically protected, don’t retaliate. That does not mean at all that you cannot terminate the worker’s assignment or not sign his timesheets or decline to provide positive feedback, merely that you must be able to show some independent and unrelated basis for doing so.
- Which means in practice that where you take steps to terminate an agency assignment or to have a particular individual taken off the job, etc., you need to retain a written record of why you chose to do so. This may very properly be skill-set, quality of work, attendance, timekeeping, end of project, run out of budget, etc. Unless supported by clear examples, however, try to avoid “loss of trust and confidence”, “attitude”, “poor relationships with colleagues”, etc., as all these could be seen as short-hand for the sort of mutual ill-will and resentment potentially caused by workplace disclosures.
Lesson for agencies supplying staff
- Make sure that your contract with the hirer is clear that any liability arising from its unlawful retaliation against some disclosure made by the person you supply will remain firmly on the other side of the table and does not somehow become your problem.