Contractual duties of confidentiality
Part IVA Protected disclosures
(1)Any provision in an agreement to which this section applies is void in so far as it purports to preclude the worker from making a protected disclosure.
(2)This section applies to any agreement between a worker and his employer (whether a worker’s contract or not), including an agreement to refrain from instituting or continuing any proceedings under this Act or any proceedings for breach of contract.
(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(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“protected disclosure” has the meaning given by section 43A,
Defined in s.235(1) · see it in the full ActIn this Act a “protected disclosure” means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H.
Defined in s.43A · see it in the full Act(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(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 ActConfirms that an agreement cannot preclude a worker from making a protected disclosure. The provision may invalidate a confidentiality term to that extent, while leaving it potentially enforceable for other confidential information (see paras [15]-[18]).
The court rejected the submission that the non-disparagement clause was void under s.43J(1), holding that it did not purport to prevent protected disclosures and expressly preserved the statutory right (see paras [31]-[34]).
Section 43J(1) did not void the COT3. The agreement settled the disputed status of earlier alleged disclosures but did not preclude the worker from making or reiterating disclosures. (see paras [71]–[74]) The subsection confirms that the anti-preclusion rule applies to agreements between worker and employer, including agreements not to institute or continue proceedings. It did not affect a COT3 which did not prevent disclosures. (see paras [71]–[74])
What each judgment says about section 43J is in the case-law panel in the full Act.