In McTigue v University Hospital Bristol NHS Foundation Trust [2016] IRLR 742 EAT, the EAT held that, in order for a claimant to be a "worker" within the meaning of the extended "whistleblower" definition in s.43K of the Employment Rights Act 1996, all that is required is that the end user substantially determined the terms under which the claimant carried out his or her work. It is not necessary to show that the end user determined those terms to any greater or lesser degree than the agency, of whom the claimant might also be an employee or worker.
The Employment Appeal Tribunal has held that there is nothing in agency workers laws to prevent employers from choosing permanent members of staff over agency workers for job vacancies.
The employment tribunal held in this case that the hirer, and not the temporary worker agency, was liable to pay compensation to the agency worker for failure to pay her at the rate she would have been paid had she been directly recruited by the hirer as an employee.
The Employment Appeal Tribunal has stressed that workers are afforded protection under the Agency Workers Regulations 2010 (SI 2010/93) only if they are supplied by a temporary work agency to work "temporarily" for the end user.