Disclosure to employer or other responsible person (s43C ERA)
43C. – (1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure […]-
(a) to his employer, or (b) where the worker reasonably believes that the relevant failure relates solely or mainly to-
(i) the conduct of a person other than his employer, or
(ii) any other matter for which a person other than his employer has legal responsibility, to that other person.
(2) A worker who, in accordance with a procedure whose use by him is authorised by his employer, makes a qualifying disclosure to a person other than his employer, is to be treated for the purposes of this Part as making the qualifying disclosure to his employer.
This section is, in the words of Lord Borrie, “absolutely at the heart” of PIDA (Hansard HL, 19 June 1998 cols. 1801/2) as it emphasises the vital role of those who are in law accountable for the conduct or practice in question. It does this by helping ensure that they are made aware of concerns, so they can investigate and address them. It sets out the wide circumstances in which a worker is protected if he raises the concern with his employer or a responsible person.
a) Disclosure to the employer (s43C(1)(a) ERA)
This includes a disclosure to any person senior to the worker, who has been expressly or implicitly authorised by the employer as having management responsibility over the worker.
b)Disclosure to a third party (s43C(1)(b) ERA)
If a worker reasonably believes that someone other than his employer bears sole or primary responsibility for the malpractice in question, then a disclosure to that other person will also qualify. For example, this may include:
- A nurse employed by an agency who, in the care home where she works, raises a concern about malpractice with the management of that care home.
- A worker in an auditing firm who raises a concern with a client.
- Someone who works for a highway contractor, who raises a concern with the local authority that the performance of the contract exposes the authority to negligence claims from injured pedestrians.
b) Deemed disclosure to employer (s43C(2) ERA)
A disclosure to a non-employer (such as a health and safety representative, a union official, its parent company, a retired non-executive director, its lawyers or external auditors, or to a commercial reporting hotline) will be treated as a disclosure to the employer in circumstances where the worker follows a procedure that has been authorised by his employer: see for example Brothers of Charity Services Merseyside v Eleady-Cole
 All ER (D) 198 (EAT).
“disclosure” : s.43L(3)
“employer” : s.43K(2)
“qualifying disclosure” : s.43B
“relevant failure” : s.43B(5)
“worker” : s.43K(1)