Employment Rights Act 1996, section 43G

Disclosure in other cases

Part IVA Protected disclosures

(1)A qualifying disclosure is made in accordance with this section if—

F182 ( a ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)[F183 the workerF183] reasonably believes that the information disclosed, and any allegation contained in it, are substantially true,

(c)he does not make the disclosure for purposes of personal gain,

(d)any of the conditions in subsection (2) is met, and

(e)in all the circumstances of the case, it is reasonable for him to make the disclosure.

(2)The conditions referred to in subsection (1)(d) are—

(a)that, at the time he makes the disclosure, the worker reasonably believes that he will be subjected to a detriment by his employer if he makes a disclosure to his employer or in accordance with section 43F,

(b)that, in a case where no person is prescribed for the purposes of section 43F in relation to the relevant failure, the worker reasonably believes that it is likely that evidence relating to the relevant failure will be concealed or destroyed if he makes a disclosure to his employer, or

(c)that the worker has previously made a disclosure of substantially the same information—

(i)to his employer, or

(ii)in accordance with section 43F.

(3)In determining for the purposes of subsection (1)(e) whether it is reasonable for the worker to make the disclosure, regard shall be had, in particular, to—

(a)the identity of the person to whom the disclosure is made,

(b)the seriousness of the relevant failure,

(c)whether the relevant failure is continuing or is likely to occur in the future,

(d)whether the disclosure is made in breach of a duty of confidentiality owed by the employer to any other person,

(e)in a case falling within subsection (2)(c)(i) or (ii), any action which the employer or the person to whom the previous disclosure in accordance with section 43F was made has taken or might reasonably be expected to have taken as a result of the previous disclosure, and

(f)in a case falling within subsection (2)(c)(i), whether in making the disclosure to the employer the worker complied with any procedure whose use by him was authorised by the employer.

(4)For the purposes of this section a subsequent disclosure may be regarded as a disclosure of substantially the same information as that disclosed by a previous disclosure as mentioned in subsection (2)(c) even though the subsequent disclosure extends to information about action taken or not taken by any person as a result of the previous disclosure.

Definitions used in section 43G 6

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
action

“act” and “action” each includes omission and references to doing an act or taking action shall be construed accordingly,

Defined in s.235(1) · see it in the full Act

Cases considering section 43G 21

Jesudason v Alder Hey Children's NHS Foundation Trust

[2020] EWCA Civ 73 · 31 January 2020Interprets

The court construed disclosure to other persons as a last-resort route. A worker must satisfy all statutory safeguards before an external or media disclosure is protected. The appellant’s broad external communications did not do so (see paras [22]-[26]; [48]-[50]). The court held that a disclosure under section 43G requires a reasonable belief that the information and allegations are substantially true. The Employment Tribunal had not decided that issue, but it was unnecessary because reasonableness under section 43G(1)(e) was not met (see paras [23]-[24]; [38]; [48]). Reasonableness in all the circumstances was the decisive control mechanism. It had to be assessed when the disclosure was made, not after investigating its truth. The Tribunal was entitled to find the appellant’s wide external disclosures unreasonable (see paras [24]-[26]; [38]; [48]-[50]). The court explained that section 43G(2) supplies a justifiable reason for bypassing the employer or a prescribed person, including a reasonable fear of detriment, risk of concealment, or a prior substantially similar disclosure (see paras [23]-[25]). The court treated the listed considerations as mandatory but non-exhaustive factors in the all-circumstances inquiry. The Trust’s prior investigation, response to complaints and implementation of recommendations were material to the conclusion that further public disclosures were unreasonable (see paras [23]-[26]; [38]; [49]).

Beatt v Croydon Health Services NHS Trust

[2017] EWCA Civ 401 · 23 May 2017

Sets the conditions for disclosure to a third party. The Court noted requirements concerning substantial truth, personal gain, reasonableness and why disclosure to the employer was inappropriate (see paras [24]-[25]). The former good-faith condition in section 43G(1)(a) applied to the relevant earlier disclosures. The Court treated satisfaction of the condition as an objective matter for the tribunal (see paras [24]-[25], [80]).

Babula v Waltham Forest College

[2007] EWCA Civ 174 · 7 March 2007Limits

The Court noted that wider disclosures are subject to additional safeguards, supporting its conclusion that the statutory scheme already balances whistle-blower and employer interests. (see paras [15]; [80]-[83]) Good faith is a substantive safeguard. A disclosure is not protected where an ulterior motive is its predominant or dominant purpose. (see para [83]) The prohibition on disclosure for personal gain was noted as one of the statutory safeguards against abuse. (see para [15]) The provision was raised in directions requiring particulars relevant to the reasonableness of an external disclosure, but was not construed by the Court of Appeal. (see para [25])

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

Amendments and notes

2 notes from legislation.gov.uk

Amendments

  1. F182S. 43G(1)(a) omitted (25.6.2013) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 18(2)(a), 103(2) (with s. 24(6))
  2. F183Words in s. 43G(1)(b) substituted (25.6.2013) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 18(2)(b), 103(2) (with s. 24(6))