Agency workers

PIDA protects workers who are introduced or supplied by an agency to the organisation where they are assigned to work, as long as the terms of engagement are substantially determined by the agency and/or the organisation, rather than by the worker (section 43K (1)(a), ERA 96).

This means that most agency workers can bring a whistleblowing claim against the organisation where they are assigned to work if that organisation victimises them for making a protected disclosure. They can also bring a claim against the agency if it penalises them for making a protected disclosure.

Under section 43K, ERA 96, both the agency and the organisation where they are placed can be deemed to be the “employer” for whistleblowing purposes, as long as both have a substantial role in setting the terms of the worker’s assignment (McTigue v University Hospital Bristol NHS Foundation Trust [2016] IRLR 742). What matters is not whether one party was more involved in setting the terms than the other, but rather, whether the organisation that penalised the whistleblower was involved to a large enough extent to be considered “substantial” (Day v Health Education England [2017] EWCA Civ 329). If you freely set all your own terms, you are unlikely to be protected, because you are likely to be genuinely self-employed and not a worker.