43H. – (1) A qualifying disclosure is made in accordance with this section if-
b) [the worker] 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) the relevant failure is of an exceptionally serious nature, and
e) in all the circumstances of the case, it is reasonable for him to make the disclosure.
(2) 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 the identity of the person to whom the disclosure is made.
With regard to this provision, points (b) and (c) above have already been addressed in the context of s43G ERA.
As to whether a failure will be regarded as being “of an exceptionally serious nature”, this is a matter of judgment in respect of which the legislation offers no specific guidance. The question will be decided on a case by case basis, but it is likely that the failure must be so serious that the public interest in its (wider) disclosure is of overriding importance. For example, it is presumed that a care worker genuinely concerned that a child was being sexually abused would be protected under this section if he went direct to the police.
In assessing the reasonableness of the worker’s disclosure in an “exceptionally serious” case, the tribunal must have regard, in particular, to the identity of the person to whom the disclosure was made (s43H(2) ERA). When these provisions were inserted by a Government amendment (Parliamentary Debates HC, Standing Committee D, 11 March 1998), the Minister said “The Government firmly believe that where exceptionally serious matters are at stake, workers should not be deterred from raising them. It is important that they should do so, and that they should not be put off by concerns that a tribunal might hold that they should have delayed their disclosure or made it in some other way. That does not mean that people should be protected when they act wholly unreasonably: for example, by going straight to the press when there could clearly have been some other less damaging way to resolve matters.”
“disclosure” : s.43L(3)
“relevant failure” : s.43B(5)
“worker” : s.43K(1)