Who is protected?


Whistleblowing protection is available to all “workers”. Genuine volunteers are not protected. Neither are the genuinely self-employed. Interns are only protected if they are “workers” (see Chapter 2). 


The definition of worker has been extended in this context (section 43K, ERA 96) to protect some people who perform “work” but who fall outside the standard definition of worker in section 230(3) of the Employment Rights Act 1993 (ERA 96) (see Chapter 2, page 34). All employees, some trainees such as student nurses and midwives, agency workers, contract workers, police constables, and members of limited liability partnerships are entitled to whistleblowing protection. 


Agency workers can claim against the end user as well as (or instead of) the employment agency, as long as the end user is mainly responsible for deciding the agency worker’s terms of engagement, or decides them jointly with the agency (McTigue v University Hospital Bristol NHS Foundation Trust [2016] UKEAT 0354/15/2107). Individuals supplied by an intermediary, such as people who contract to work via umbrella companies or personal service companies are probably also covered, as long as their terms of engagement are mainly determined by the end-user and/or intermediary. 


Especially in the health sector, courts and tribunals generally seem to be keen to take a broad approach to interpreting whistleblowing law, to promote the policy of encouraging greater openness, following the publication of the Francis Report (the Mid-Staffordshire NHS Trust Public Inquiry Report, 2013).