Agencies that are terminating an agency worker’s assignment as a result of an issue in the workplace should consider whether whistleblowing legislation applies in order to minimise the risk of costly claims.
Essentially, “workers” (which is a very wide definition) have certain protections under whistleblowing legislation if they make a “protected disclosure” – e.g. expose a wrongdoing in the workplace, such as a potential risk to health and safety. The protection includes the right not to be subject to detriment as a result of a protected disclosure. Detriment could for example include the termination of an assignment, and such treatment may entitle the worker to compensation.
Recent case law also suggests that a claim under whistleblowing legislation can be brought against both the agency and the hirer in certain circumstances. In the case of McTigue v University Hospital Bristol NHS Foundation Trust, although the worker had a contract with the agency, it was held that the hirer also determined the terms and conditions relating to standards of behaviour and compliance with processes, which was enough for the hirer to also face liability.
Theresa Mimnagh, Associate Director at Lawspeed, said “Whistleblowing legislation and any issues raised by a contractor should be taken into account when deciding to terminate an assignment, in order to ensure that this does not form the basis for the decision, in the same way that it should be considered whether termination is for a discriminatory reason”.
In light of the potential risks, agencies are reminded that they should have clear policies in place regarding whistleblowing and that they should not simply ignore a complaint made by an agency worker, as it may be a “protected disclosure” – i.e. covered by whistleblowing legislation.
Lawspeed can provide advice on whistleblowing legislation and help with policies and training. Call us on 01273 236 236 for more information.