Employment Rights Act 1996, section 43C

Disclosure to employer or other responsible person

Part IVA Protected disclosures

(1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure F177 ...—

(a)to his employer, or

(b)where the worker reasonably believes that the relevant failure relates solely or mainly to—

(i)the conduct of a person other than his employer, or

(ii)any other matter for which a person other than his employer has legal responsibility,

to that other person.

(2)A worker who, in accordance with a procedure whose use by him is authorised by his employer, makes a qualifying disclosure to a person other than his employer, is to be treated for the purposes of this Part as making the qualifying disclosure to his employer.

Definitions used in section 43C 5

qualifying disclosure

(1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following—

(a)that a criminal offence has been committed, is being committed or is likely to be committed,

(b)that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(c)that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d)that the health or safety of any individual has been, is being or is likely to be endangered,

(da)that sexual harassment has occurred, is occurring or is likely to occur,

(e)that the environment has been, is being or is likely to be damaged, or

(f)that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

Defined in s.43B(1) · see it in the full Act

“qualifying disclosure” has the meaning given by section 43B;

Defined in s.43L(1) · see it in the full Act
workers

(4) The Secretary of State may by order make amendments to this section as to what individuals count as “workers” for the purposes of this Part (despite not being within the definition in section 230(3)).

Defined in s.43K(4) · see it in the full Act
worker

(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,

(b) contracts or contracted with a person, for the purposes of that person’s business, for the execution of work to be done in a place not under the control or management of that person and would fall within section 230(3)(b) if for “personally” in that provision there were substituted “(whether personally or otherwise)”,

( ba )works or worked as a person performing services under a contract entered into by him with NHS England under section 83(2), 84, 92, 100, 107, 115(4), 117 or 134 of, or Schedule 12 to, the National Health Service Act 2006 or with a Local Health Board under section 41(2)(b), 42, 50, 57, 64 or 92 of, or Schedule 7 to, the National Health Service (Wales) Act 2006 ,

( bb )works or worked as a person performing services under a contract entered into by him with a Health Board under section 17J or 17Q of the National Health Service (Scotland) Act 1978,

(c) works or worked as a person providing services in accordance with arrangements made—

(i)by NHS England under section 126 of the National Health Service Act 2006, or Local Health Board under section 71 or 80 of the National Health Service (Wales) Act 2006 , or

( ii ) by a Health Board under section 2C, 17AA, 17C, . . . 25, 26 or 27 of the National Health Service (Scotland) Act 1978, or

(cb) is or was provided with work experience provided pursuant to a course of education or training approved by, or under arrangements with, the Nursing and Midwifery Council in accordance with article 15(6)(a) of the Nursing and Midwifery Order 2001 (S.I. 2002/253), or

(d)is or was provided with work experience provided pursuant to a training course or programme or with training for employment (or with both) otherwise than—

(i)under a contract of employment, or

(ii)by an educational establishment on a course run by that establishment;

and any reference to a worker’s contract, to employment or to a worker being “employed” shall be construed accordingly.

Defined in s.43K(1) · see it in the full Act

(3) In this Act “worker” (except in the phrases “shop worker” and “betting worker”) means an individual who has entered into or works under (or, where the employment has ceased, worked under)—

(a)a contract of employment, or

(b)any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;

Defined in s.230(3) · see it in the full Act

(6) This section has effect subject to sections 43K , 47B(3) and 49B(10) ; and for the purposes of Part XIII so far as relating to Part IVA or section 47B, “worker”, “worker’s contract” and, in relation to a worker, “employer”, “employment” and “employed” have the extended meaning given by section 43K.

Defined in s.230(6) · see it in the full Act
employer

(4) In this Act “employer”, in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed.

Defined in s.230(4) · see it in the full Act

(6) This section has effect subject to sections 43K , 47B(3) and 49B(10) ; and for the purposes of Part XIII so far as relating to Part IVA or section 47B, “worker”, “worker’s contract” and, in relation to a worker, “employer”, “employment” and “employed” have the extended meaning given by section 43K.

Defined in s.230(6) · see it in the full Act

(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,

(aa)in relation to a worker falling within paragraph (ba) of that subsection, NHS England , or the Local Health Board referred to in that paragraph,

(ab)in relation to a worker falling within paragraph (bb) of that subsection, the Health Board referred to in that paragraph,

(b)in relation to a worker falling within paragraph (c) of that subsection, NHS England or the board referred to in that paragraph, and

(c)in relation to a worker falling within paragraph (cb) or (d) of that subsection, the person providing the work experience or training.

Defined in s.43K(2) · see it in the full Act
the relevant failure

(5) In this Part “the relevant failure”, in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1).

Defined in s.43B(5) · see it in the full Act

“the relevant failure”, in relation to a qualifying disclosure, has the meaning given by section 43B(5);

Defined in s.43L(1) · see it in the full Act

Cases considering section 43C 53

Meares v Medway Primary Care Trust

[2011] EWCA Civ 897 · 28 July 2011Interprets

Section 43C supplied the statutory context in which good faith was treated as an ingredient of a protected disclosure made to the employer. The Court did not decide whether the provision placed the burden of proving good faith on the claimant or created a presumption in its absence, but held that the respondent could put good faith in issue. (see paras [12], [30])

Babula v Waltham Forest College

[2007] EWCA Civ 174 · 7 March 2007Interprets

A qualifying disclosure to an employer must be made in good faith. Good faith supplies a distinct safeguard in addition to reasonable belief. (see paras [79]; [81]; [83]) The provision was set out as permitting a good-faith disclosure to another responsible person where the worker reasonably believes that person bears the relevant responsibility. (see para [13]) The provision was noted as treating a disclosure through an employer-authorised procedure as a disclosure to the employer. (see para [13])

Street v Derbyshire Unemployed Workers' Centre

[2004] EWCA Civ 964 · 21 July 2004Interprets

A disclosure to an employer or another responsible person qualifies for protection if made in good faith. Unlike section 43G, this route contains no separate requirement that disclosure be reasonable in all the circumstances (see paras [5]–[6]; [37]; [43]).

33 more judgments, and what each says about section 43C, are in the case-law panel in the full Act.

Amendments and notes

1 notes from legislation.gov.uk

Amendments

  1. F177Words in s. 43C(1) omitted (25.6.2013) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 18(1)(a), 103(2) (with s. 24(6))