Agency Workers May Have Whistleblowing Protection Against End-Users

The EAT has held that an agency worker was entitled to whistleblowing protection against an end-user as she was a "worker" under the extended definition in section 43K of the Employment Rights Act 1996.

The extended definition of "worker" applies only to the whistleblowing provisions of the ERA 1996. It was included to protect agency workers and was specifically intended to provide whistleblowing protection for health workers in England, Scotland and Wales, where the NHS has contractual arrangements in place that mean such workers do not fall within the standard definition of "worker" under section 230(3) of the ERA 1996.

Section 43K(2) of the ERA 1996 provides that in respect of an agency worker, the "employer" includes "the person who substantially determines or determined the terms on which he is or was engaged..."