A recent case at the Employment Appeal Tribunal has decided that someone can be classed as a whistleblower, with all the protections that attach thereto, even if they were not an employee of the company on whom they blew the whistle.
The key legislation was sections 43K(1)(a) and (2)(a) Employment Rights Act 1996.
43 Extension of meaning of “worker” etc. (1) For the purposes of this Part “worker” includes an individual who is not a worker as defined by section 230(3) but who— (a)works or worked for a person in circumstances in which— (i)he is or was introduced or supplied to do that work by a third person, and (ii)the terms on which he is or was engaged to do the work are or were in practice substantially determined not by him but by the person for whom he works or worked, by the third person or by both of them,
(2) For the purposes of this Part “employer” includes— (a)in relation to a worker falling within paragraph (a) of subsection (1), the person who substantially determines or determined the terms on which he is or was engaged
They mean that an agency worker who makes a disclosure to a client of that agency will be counted as a whistleblower. The disclosure still has to pass the other hurdles established by the Public Interest Disclosure Act 1998 and the amendments inserted by the Enterprise and Regulatory Reform Act 2013, that the person making the disclosure reasonably believes it to relate to a breach of a legal obligation and that it is in the public interest that it be made.
What should users of agency staff bear in mind?
When a disclosure is made by an agency worker, it should be handled in the same way as if it had been made by a regular member of staff.
Agency staff should be referred to the employer’s whistle-blowing policy so that control can be maintained over the way in which a disclosure is made.
All disclosures should be investigated quickly and efficiently. A tardy process may raise suspicions that the employer is looking for reasons why the disclosure is not protected in order to take retaliatory action.
If the nature of the disclosure relates more closely to the agency than to the employer, it may be a good idea to bring the agency into the process.
If the disclosure relates to any regular members of staff, there may be a temptation on their part to pursue a retributive or retaliatory course of action against the whistle-blower. All members of staff should be advised in writing, in no uncertain terms, that such actions will not be condoned. The employer should ensure that they can prove later that all reasonable steps were taken to avoid such actions.
The staff handbook should be amended in order to reiterate that it applies equally to agency workers.
It is very important that the employer does not take retaliatory action against the worker making the disclosure. If any action is taken against the worker, the employer needs to be able to supply evidence that the action was not related to the disclosure.
This means that employers need to ensure that they keep a written record of all deliberations, decisions and the processes that led to them. Reasons for action taken against agency workers may include things such as lack of qualifications, poor time keeping, unsatisfactory quality of work, the end of the project for which the worker was taken on, budget restrictions and such like.
However, vague and unsubstantiable justifications such as “loss of trust and confidence”, “attitude”, “poor relationships with colleagues”, etc. should be avoided.