Employment Rights Act 1996, section 43K

Extension of meaning of “worker” etc. for Part IVA

Part IVA Protected disclosures

(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)”,

[F186 ( ba )works or worked as a person performing services under a contract entered into by him with [F187 NHS EnglandF187] [F188 under [F189 section 83(2), 84, 92, 100, 107, 115(4), 117 or 134 of, or Schedule 12 to,F189] the National Health Service Act 2006 or with a Local Health Board under [F190 section 41(2)(b), 42, 50, 57, 64 or 92 of, or Schedule 7 to,F190] the National Health Service (Wales) Act 2006F188] ,F186]

[F191 ( bb )works or worked as a person performing services under a contract entered into by him with a Health Board under section 17J [F192 or 17QF192] of the National Health Service (Scotland) Act 1978,F191]

(c)[F193 works or worked as a person providing servicesF193] in accordance with arrangements made—

(i)by [[F194,F187 NHS EnglandF187] [F195 under section 126 of the National Health Service Act 2006,F195] orF194] [F196 Local Health BoardF196] under [F197 section 71 or 80 of the National Health Service (Wales) Act 2006F197] , or

( ii ) by a Health Board under section [F198 2C, 17AA, 17C,F198] F199 . . . 25, 26 or 27 of the National Health Service (Scotland) Act 1978, or

[F200 (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), orF200]

(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.

(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,

[F201 (aa)in relation to a worker falling within paragraph (ba) of that subsection, [[F202,F187 NHS EnglandF187] , or theF202] Local Health Board referred to in that paragraph,F201]

[F203 (ab)in relation to a worker falling within paragraph (bb) of that subsection, the Health Board referred to in that paragraph,F203]

(b)in relation to a worker falling within paragraph (c) of that subsection, [F204 NHS England or the boardF204] referred to in that paragraph, and

(c)in relation to a worker falling within paragraph [F205 (cb) orF205] (d) of that subsection, the person providing the work experience or training.

(3) In this section “educational establishment” includes any university, college, school or other educational establishment.

[F206 (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)).

F206 ( 5 )An order under subsection (4) may not make an amendment that has the effect of removing a category of individual unless the Secretary of State is satisfied that there are no longer any individuals in that category.F206]

Definitions used in section 43K 5

worker

(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
business

“business” includes a trade or profession and includes any activity carried on by a body of persons (whether corporate or unincorporated),

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

(5) In this Act “employment”—

(a)in relation to an employee, means (except for the purposes of section 171) employment under a contract of employment, and

(b)in relation to a worker, means employment under his contract;

Defined in s.230(5) · 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
contract of employment

(2) In this Act “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.

Defined in s.230(2) · see it in the full Act
worker’s contract

(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

Cases considering section 43K 37

Phyllis Sullivan v Isle of Wight Council

[2025] EWCA Civ 379 · 3 April 2025Limits

Gives worker an extended meaning for the protected-disclosure provisions. The court held that its deliberate scope could not be read as extending protection to job applicants generally. (see paras [7]; [23]-[24]; [52]; [105]) Cited only. The proposed amendment would have extended the worker definition to job applicants generally, but Parliament rejected it. The court treated that legislative choice as relevant to objective justification and statutory scope. (see paras [23]-[24]; [88]-[90])

Beatt v Croydon Health Services NHS Trust

[2017] EWCA Civ 401 · 23 May 2017Defines

Defines worker for the whistleblowing provisions to include former employees. This supported consideration of detriments occurring after dismissal (see para [34]).

Day v Health Education England & Ors

[2017] EWCA Civ 329 · 5 May 2017Interprets

The court interpreted the extended worker and employer definitions as operating separately against each respondent. It also confirmed that more than one party may substantially determine the terms of engagement. (see paras [8]–[11]; [16]–[23]) The opening qualification was interpreted as excluding a person only where that person is already a section 230(3) worker in relation to the respondent in question. (see paras [16]–[23]) The introduced-or-supplied worker category can apply against an end-user even where the worker has a section 230(3) relationship with the introducer. (see paras [8]; [16]–[23]) The provision identifies work to which the individual was introduced or supplied by a third person as a qualifying circumstance for the extended definition. (see paras [8]–[10]) The court interpreted the reference to substantial determination of engagement terms as permitting the end-user and introducer to determine terms jointly or separately, without requiring identification of the greater contributor. (see paras [11]; [20]; [24]–[27]) The extended employer definition was interpreted as allowing both the end-user and introducer to qualify where each substantially determines the terms on which the worker is engaged. (see paras [10]–[11]; [20]; [23])

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

Amendments and notes

25 notes from legislation.gov.uk

Amendments

  1. F186S. 43K(1)(ba) inserted (1.4.2004 for E.W.) by Health and Social Care (Community Health and Standards) Act 2003 (c. 43), ss. 184, 199(1)(4), Sch. 11 para. 65(2); S.I. 2004/288, art. 5(2)(x) (with transitional provision in art. 7(11)) (as amended by S.I. 2004/866, S.I. 2004/1009 and S.I. 2005/2925); S.I. 2004/480, art. 4(2)(bb) (as amended by S.I. 2004/1019 and S.I. 2006/345)
  2. F187Words in s. 43K substituted (1.7.2022) by Health and Care Act 2022 (c. 31), s. 186(6), Sch. 1 para. 1(1)(2); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)
  3. F188Words in s. 43K(1)(ba) substituted (1.3.2007) by National Health Service (Consequential Provisions) Act 2006 (c. 43), ss. 2, 8(2), Sch. 1 para. 178(a) (with Sch. 3 Pt. 1)
  4. F189Words in s. 43K(1)(ba) substituted (25.6.2013) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 20(2)(a), 103(2) (with s. 24(6))
  5. F190Words in s. 43K(1)(ba) substituted (25.6.2013) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 20(2)(b), 103(2) (with s. 24(6))
  6. F191S. 43K(1)(bb) inserted (1.4.2004) by The Primary Medical Services (Scotland) Act 2004 (Consequential Modifications) Order 2004 (S.I. 2004/957), art. 2, Sch. para. 8(a)(i)
  7. F192Words in s. 43K(1)(bb) inserted (25.6.2013) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 20(3), 103(2) (with s. 24(6))
  8. F193Words in s. 43K(1)(c) substituted (25.6.2013) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 20(4)(a), 103(2) (with s. 24(6))
  9. F194Words in s. 43K(1)(c)(i) inserted (1.10.2002) by National Health Service Reform and Health Care Professions Act 2002 (c. 17), s. 2(5), Sch. 2 Pt. 2 para. 63; S.I. 2002/2478, arts. 2(1), 3(1)
  10. F195Words in s. 43K(1)(c)(i) inserted (1.3.2007) by National Health Service (Consequential Provisions) Act 2006 (c. 43), ss. 2, 8(2), Sch. 1 para. 178(b)(i) (with Sch. 3 Pt. 1)
  11. F196Words in s. 43K(1)(c)(i) substituted (1.4.2007) by The References to Health Authorities Order 2007 (S.I. 2007/961), art. 3, Sch. {para. 27(2)}
  12. F197Words in s. 43K(1)(c)(i) substituted (1.3.2007) by National Health Service (Consequential Provisions) Act 2006 (c. 43), ss. 2, 8(2), Sch. 1 para. 178(b)(ii) (with Sch. 3 Pt. 1)
  13. F198Words in s. 43K(1)(c)(ii) inserted (25.6.2013) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 20(4)(b), 103(2) (with s. 24(6))
  14. F199Word in s. 43K(1)(c)(ii) repealed (1.4.2004) by The Primary Medical Services (Scotland) Act 2004 (Consequential Modifications) Order 2004 (S.I. 2004/957), art. 2, Sch. para. 8(a)(iii)
  15. F200S. 43K(1)(cb) inserted (6.4.2015) by The Protected Disclosures (Extension of Meaning of Worker) Order 2015 (S.I. 2015/491), arts. 1, 2(2)
  16. F201S. 43K(2)(aa) inserted (1.4.2004 for E.W.) by Health and Social Care (Community Health and Standards) Act 2003 (c. 43), ss. 184, 199(1)(4), Sch. 11 para. 65(3); S.I. 2004/288, art. 5(2)(x) (as amended by S.I. 2004/866, S.I. 2004/1009 and S.I. 2005/2925); S.I. 2004/480, art. 4(2)(bb) (as amended by S.I. 2004/1019 and S.I. 2006/345)
  17. F202Words in s. 43K(2)(aa) substituted (1.4.2013) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 5 para. 73(c); S.I. 2013/160, art. 2(2) (with arts. 7-9)
  18. F203S. 43K(2)(ab) inserted (1.4.2004) by The Primary Medical Services (Scotland) Act 2004 (Consequential Modifications) Order 2004 (S.I. 2004/957), art. 2, Sch. para. 8(b)
  19. F204Words in s. 43K(2)(b) substituted (1.7.2022) by Health and Care Act 2022 (c. 31), s. 186(6), Sch. 1 para. 5; S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)
  20. F205Words in s. 43K(2)(c) inserted (6.4.2015) by The Protected Disclosures (Extension of Meaning of Worker) Order 2015 (S.I. 2015/491), arts. 1, 2(3)
  21. F206S. 43K(4)(5) inserted (25.4.2013 for specified purposes) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 20(7), 103(1)(i)(2) (with s. 24(6)) text inserted for certain specified purposes only, see the commentary.

Modifications

  1. C26S. 43K(1)(ba) modified (E.) (1.4.2004) by The General Medical Services and Personal Medical Services Transitional and Consequential Provisions Order 2004 (S.I. 2004/865), art. 109(2)(f)
  2. C27S. 43K(1)(ba) modified (W.) (1.4.2004) by The General Medical Services Transitional and Consequential Provisions (Wales) (No. 2) Order 2004 (S.I. 2004/1016), art. 85(2)(f)
  3. C28S. 43K(1)(bb) modified (S.) (1.4.2004) by The General Medical Services and Section 17C Agreements (Transitional and other Ancillary Provisions) (Scotland) Order 2004 (S.S.I. 2004/163), art. 96(2)(d)
  4. C29S. 43K(1)(c)(ii) modified (temp) (25.6.2013) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 20(10), 103(2) (with s. 24(6))