Section 43 (G) Organisations that are not prescribed
43G. – (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) 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.
This section sets out the circumstances in which other disclosures, including those to the media, may be protected. In summary, such disclosures must meet three tests to be protected. The first of these (s43G(1)(b)-(c) ERA) relates to the truthfulness of the information and the motive of the whistleblower. The second (s43G(2) ERA) lays down three preconditions, one of which must be satisfied if the disclosure is to be protected. Thirdly, in order to be protected the disclosure must be reasonable in all the circumstances (s.43G(1)(e) and (3)). These are addressed in turn
a) Truthfulness of the information and the motive of the whistleblower
(1) Reasonable belief (s43G(1)(b) ERA)
The worker must believe that the information and any allegation contained in it are substantially true, and that belief must be reasonable. As outlined above, the test for reasonable belief must be assessed by reference to the facts as understood by the worker at the relevant time, having regard to the worker’s individual characteristics.
(2) Personal gain (s43G(1)(c) ERA)
This provision – namely that the whistleblower will not be protected if the disclosure is made for purposes of personal gain – is aimed primarily at ‘cheque book journalism’. It covers not only payments of money, but benefits in kind. It would also most likely catch a situation where the benefit did not go directly to the worker but to a member of his family, provided that its purpose was personal gain. The focus is on the worker’s purpose at the time when the disclosure was made, not on what actually transpired in practice. This provision does not, however, encompass any reward payable by or under any enactment (s.43L(2) ERA), such as a payment made by Customs and Excise.
(b) Preconditions (s43G(2) ERA)
The presumption is that, before any wider disclosure will be protected, the concern will have been raised with the employer or with a prescribed regulator. This is reflected in three preconditions in this subsection, one of which must be met if a public disclosure under this section can be protected. These are that (a) the worker reasonably believes he will be victimised by his employer, if he makes a disclosure to them or a prescribed person; or (2) where there is no prescribed person, he reasonably believes there is likely to be a cover-up; or (c) a disclosure of substantially the same information had previously been raised to his employer or to a prescribed person.
(1) Fear of victimisation (s43G(2)(a) ERA)
At the time when he make the disclosure, the worker must reasonably believe that he will be victimised by his employer, if he were to make the disclosure to them or to a prescribed person.
In order to mitigate against the risk of a worker being able to demonstrate this, as well as being a matter of best practice, it is suggested that organisations should (a) establish, deliver and promote a clear whistleblowing policy and procedure; (b) ensure that everyone knows victimisation of whistleblowers is unacceptable; and (c) make it clear that reporting concerns to a prescribed regulator is acceptable. It is also suggested that organisations should review how they have handled any such matters in the past. This is because a worker is more likely to be able to satisfy this precondition if he can show, by reference to a previous incident, that the employer had punished another whistleblower for reporting their concerns.
For those advising workers, it is important to note that even though a reasonable fear of victimisation may justify making a wider disclosure in the first instance, reporting a concern to a prescribed regulator will more readily secure protection for the client. However, where for example the worker has reasonable grounds for believing that as a result of an unacceptably close relationship between a prescribed regulator and his employer, he will be victimised as a consequence of reporting a concern in that way, a wider disclosure may be made.
(2) Fear that evidence will be concealed or destroyed (s43G(2)(b) ERA)
This precondition deals with circumstances where (a) there is no prescribed regulator, and (b) the worker reasonably believes that a cover-up of the malpractice is likely to occur, if he reports his concern to the employer.
Where there is a prescribed regulator, it is suggested that a concern about a cover-up by an employer should be raised with that regulator in the first instance. A wider disclosure would only protected if the worker can show that the matter is “exceptionally serious” and falls within the scope of s43H ERA, which can be difficult to establish (see further below).
(3) Matter previously raised with the employer or a prescribed person (s43G(2)(c) ERA)
This provides that wider disclosures may be protected in circumstances where the matter has previously been raised internally or with a prescribed regulator. The disclosure does not have to be of exactly the same information, provided it is substantially the same. In ALM Medical Services v Bladon, the EAT – though overturned on other grounds – urged tribunals “to adopt a common-sense broad approach” to this question.
Section 43G(4) ERA further provides that information may be regarded as substantially the same, erven though the subsequent disclosure extends to information about action taken or not taken by any person as a result of the previous disclosure. This means that the worker will not lose protection if, in addition to reiterating the original concern, he comments on why he considers the initial response (be it of an employer or a prescribed regulator) was inadequate or unreasonable.
(c) Reasonableness of the disclosure (s43G(3) ERA)
If a worker has satisfied the ‘gateway criteria’ discussed above, the tribunal must consider whether the wider disclosure was reasonable. In so doing, the tribunal should have particular regard to the six matters set out in this subsection.
(1) Identity of the person to whom disclosure is made (s43G(3)(a) ERA)
The range of people to whom such a disclosure might reasonably be made is potentially vast. It could include the police, a professional body, a non-prescribed regulator, a union official, the relatives of a patient at risk, a contracting party whose rights were being flouted, shareholders or the media. This is a relevant consideration because, for example, reporting a concern to a professional body may be regarded as a reasonable course of action, whereas going to the media may not be.
(2) Seriousness of the failure (s43G(3)(b) ERA)
The greater the level of seriousness of the relevant failure, the more reasonable it may be to make a wider disclosure.
(3) Continuing or likely future failure (s43G(3)(c) ERA)
A wider disclosure is more likely to be regarded as reasonable if it concerns an ongoing or future threat, rather than one which has subsided.
(4) Breach of duty of confidentiality owed by the employer (s43G(3)(d) ERA)
This provision seeks to ensure that the interests of third parties, about whom confidential information may be disclosed, are taken into account. It may be unreasonable for a worker to make a wider disclosure in circumstances where this would infringe the rights of an innocent third party, to whom the employer owes a duty of confidence.
(5) Previous disclosure (s43G(3)(e) ERA)
If the case is one of a repeat disclosure (i.e. subsequent to one that has already been made by a worker to the employer or a prescribed person), then in assessing the reasonableness of that disclosure, it is necessary to consider what (if any) action the employer or the prescribed person took, or might reasonably have been expected to take, as a result of the previous disclosure. For example, if no proper investigation or action has been taken in response to the earlier disclosure, it will be easier to persuade a tribunal that it was reasonable to make a wider disclosure.
As a general principle, it is desirable that workers who blow the whistle to their employer or a prescribed regulator are given feedback on what is being done to investigate their complaint, and the outcome of any investigations. Employers who are aware that a concern has been reported to a prescribed regulator might sensibly request that the regulator communicate such matters to any whistleblower.
(6) Proper procedures (s4G(3)(f) ERA)
Where a worker has previously made a disclosure of substantially the same information to his employer, the tribunal should consider (a) whether there was any authorised procedure for reporting the concern, and (b) whether the worker complied with it. Again, this provision emphasises the desirability and importance of employers having proper whistleblowing policies and procedures in place.
“disclosure” : s.43L(3)
“employer” : s.43K(2)
“personal gain”: s.43L(2)
“qualifying disclosure” : s.43B
“relevant failure” : s.43B(5)
“worker” : s.43K(1)