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Age Discrimination - A Full Review
This the subtitle for this emissive
1) Age Discrimination - A full Review

Legal Basis
Age Discrimination law will be first introduced in December 2006 when the Equal Treatment Framework Directive (2000/78/EC) requires UK implementation. The DTI is currently consulting on draft Employment Equality (Age) Regulations 2006, with the aim of the legislation taking effect from 1 October 2006. With the well documented rise in the population's life expectancy this law aims to address what some describe as the final area of discrimination not catered for in English ad Welsh law. The DTI published a draft version of the Employment Equality (Age) Regulations 2006 last Summer, and has published the final version this month (June 2006). The Regulations are due to come into force on 1 October 2006.

Definition of Discrimination
Subtle Differences exist in the definition of discrimination under this head compared with other forms of discrimination. S3(1) from the (draft) Regulations:
For the purposes of these Regulations, a person (“A”) discriminates against another person (“B”) if—
(a) on grounds of B’s age, A treats B less favourably than he treats or would treat other persons, or
(b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same agegroup as B, but—
(i) which puts or would put persons of the same age group as B at a particular disadvantage when compared with other persons, and;
(ii) which puts B at that disadvantage, and A cannot show the treatment or, as the case may be, provision, criterion or practice to be a proportionate means of achieving a legitimate aim.
Direct and Indirect Discrimination forms part of the new Regulations:
Indirect discrimination, rather as expected will occur when age is not explicitly used as a distinguishing criterion but nevertheless puts one or more persons of one age group at a particular disadvantage compared with other age groups.
Direct discrimination will take place when someone's age is explicitly used as a reason to treat an individual differently in a comparable situation.

AGE DISCRIMINATION AT THE START OF EMPLOYMENT

Introduction
This section will look at the general approach to objective justification of age-based practices in the context of recruitment and selection in employment and for vocational training.
Extract from (draft) Regulations
7(1) It is unlawful for an employer, in relation to employment by him at an establishment in Great Britain, to discriminate against a person –
(a) in the arrangements he makes for the purpose of determining to whom he should offer employment;
(b) in the terms he offers that person employment; or
(c) by refusing to offer, or deliberately not offering, him employment.
7(4) Paragraphs 1(a) and (c) do not apply in relation to a person who has attained the age of 65 and who, if recruited, would be an employee or in Crown employment.
The exception in regulation 7(4) is vital and sums up the general ethos behind the new legislation. Its effect is that if someone 65 or over refused employment, then she/he will have no right to complain to a tribunal.
However, if that person is then employed, then he is entitled to be employed on the same terms as a younger employee in the same circumstances

When Difference of Treatment is Justified

Articles 2 and 6 of the Directive provide that both direct and indirect discrimination can be justified if:
It pursues a legitimate aim; and
It is an appropriate and necessary or proportionate means of achieving a legitimate aim.
The Regulations:
3(1) …[treatment is justified if the employer can] show the treatment or, as the case may be, provision, criterion or practice to be a proportionate means of achieving a legitimate aim.
3(2) … the following are examples of treatment which, depending on the circumstances of the case, an employment tribunal or, as the case may be, a county or sheriff court may find to be a proportionate means of achieving a legitimate aim –
(a) the setting of requirements as to age in order to ensure the protection or promote the vocational integration of people in a particular age group;
(b) the fixing of a minimum age to quality for certain advantages linked to employment or occupation in order to recruit or retain older people:
(c) the fixing of a maximum age for recruitment or promotion which is based on the training requirements of the post in question or the need for a reasonable period in post before retirement.
A comparison of B’s case with that of another person under paragraph (1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

Pursuing a legitimate aim.

In the absence of further guidelines my prediction is that a common cause of litigation will surround (c) the argument as to what length of training is required in certain industries in order to set a maximum age to qualify and what constitutes a reasonable period in the post is before retirement. Further help is needed from ACAS on this or we will have to wait for case law to set a path in various industries.

The DTI www.dti.gov.uk offers further assistance on what may constitute 'legitimate aims'. These include; Health, welfare and safety, Rewarding loyalty and particular training requirements (probably physically strenous work). It must be noted that The UK retains a significant discretion as justification (Article 6 of the Directive) is to be interpreted under national laws and therefore the definition of 'justification' may be extended by the Government. It remains to be seen for example to what extent economic factors will be a legitimate aim.
Genuine Occupational Requirements

The genuine occupational requirement defence may only be applied in cases where Regulations 7(1)(a) and (c) and 7(2)(b), (c) and (d) apply (recruitment, promotion, transfer, training and dismissal).

Extract from (draft) Regulations 8(1) In relation to discrimination falling within regulation 3
(discrimination on grounds of age)—
(a) regulation 7(1)(a) or (c) does not apply to any employment;
(b) regulation 7(2)(b) or (c) does not apply to promotion or transfer to, or training for, any employment; and
(c) regulation 7(2)(d) does not apply to dismissal from any employment, where paragraph (2) applies.

8(2) This paragraph applies where, having regard to the nature of the employment or the context in which it is carried out—
(a) possessing a characteristic related to age is a genuine and determining occupational requirement;
(b) it is proportionate to apply that requirement in the particular case; and
(c) either—
(i) the person to whom that requirement is applied does not meet it, or
(ii) the employer is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied, that that person meets it.

An interesting debate on what duty falls upon an employer in assessing prospective and current employees to see if they are effectively to old to perform the role of e.g a fire fighter is bound to follow the inception of this legislation

When determining whether race discrimination has occurred a tribunal may draw inferences from certain conduct of the Respondent.Section 65 ( Section 74(1) SDA for sex discrimination claims with forms of questions and answers prescribed by SI 1975/2048) states:  S.65 'Help for aggrieved persons in obtaining information etc'

(1) With a view to helping a person (“the person aggrieved”) who considers he may have been discriminated against [or subjected to harassment] in contravention of this Act to decide whether to institute proceedings and, if he does so, to formulate and present his case in the most effective manner, the Secretary of State shall by order prescribe –
(a) forms by which the person aggrieved may question the respondent on his reasons for doing any relevant act, or on any other matter which is or may be relevant; and
(b) forms by which the respondent may if he so wishes reply to any questions.
(2) Where the person aggrieved questions the respondent (whether in accordance with an order under subsection (1)
or not) –
(a) the question, and any help by the respondent (whether in accordance with such an order or not) shall, subject to the following provisions of this section, be admissible as evidence in the proceedings;
(b) if it appears to the court or tribunal that the respondent deliberately, and without reasonable excuse, omitted to reply within a reasonable period or, where the question relates to discrimination on grounds of race or ethnic or national origins, or to harassment, the period of eight weeks beginning with the day on which the question was served on him or that his reply is evasive or equivocal, the court or tribunal may draw any inference from that fact it considers it just and equitable to draw, including an inference that he committed an unlawful act.'

The question which arose in this case was, May inferences be drawn from replies given by a Respondent in a form not prescribed by the Order?

The Claimant, D a police sargeant made claims under the Race Relations Act 1976 of victimisation and unlawful race discrimination. The central element of his complaint being his transfer from one Police Station to another. The Respondent argued that the Claimant was transferred on the basis of an objective criterion. The employment tribunal accepted the employer's explanation that the transfer had not been on racial grounds and dismissed the claim. On appeal, the EAT considered whether the tribunal had correctly applied the burden of proof provisions of S.54A RRA and whether it should have considered drawing inferences under S.65 of the Act from the employer's erroneous or misleading replies to the employee's questions, even though those replies were not to a statutory questionnaire but in the employer's further and better particulars, the notice of appearance and a letter. The EAT judgment, which followed, contained justification of why inferences may be drawn if replies are evasive:

'A statutory format is provided under the Order and no doubt it is more convenient for aggrieved persons and respondents to adopt that format. The procedure is most useful so aggrieved persons may understand the nature of any suspected unfavourable treatment prior to launching Tribunal proceedings. It facilitates the presentation at an early stage of material focussing upon factual matters which may be in dispute, and explanations for various forms of treatment.
Thus a Tribunal may, but is not required to, draw an inference from a nil return or from an invasive reply if it considers it just and equitable so to do. A respondent cannot be ordered to complete a questionnaire, so the sanction for breach of a Tribunal Order is not available if it fails to reply. That is why the facility to infer matters is included in the statute.' (para 43) The EAT allowed the appeal on both grounds. With regard to the burden of proof, applying Sinclair Roche and Temperley and ors v Heard and anor EAT, 2004 IRLR 763 (Brief 768), the EAT held that the tribunal had erred in taking the employer's explanation into account when determining whether a prima facie case of discrimination had been made out.

In relation to D's appeal on the drawing of inferences, the EAT noted that it is well known that it can be drawn from an employer's failure to reply to a statutory questionnaire or from evasive replies. This principle applies equally to replies given in a form other than under the statutory questionnaire procedure. S.65(2) refers to questions asked by an aggrieved person 'whether in accordance with an order under subsection (1) [i.e. the statutory procedure] or not'.

Accordingly, a respondent who fails to respond, or responds evasively, when asked a direct question found in writing by question has been asked in a statutory questionnaire. After reading this case repeatedly it is still unclear if inferences are to be drawn, whether those questions still have to be framed within an order or whether a failure to reply to a simple written request from a solicitor will be enough. The EAT remitted the case to the tribunal for further consideration.

Conclusion:

Inferences may be drawn under RRA 1976 Section 65 from material given by a respondent in response to a statutory questionnaire, OR OTHERWISE, including a Response and additional information.
The Learned Judge McMullen draws on Barton and common law principles to justify this approach: 'This approach is made clear by the judgment in Barton where in guideline 6 (paragraph 25) there is this:
“(6) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with s.74(2)(b) of the Sex Discrimination Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within s.74(2) of the
Sex Discrimination Act: see Hinks v Riva Systems EAT/501/96.”

At common law one of the main tasks of a fact finding Tribunal is the drawing of inferences from a failure to reply to a proper question, or an evasive reply. In certain circumstances, by statute a jury or justices can draw such inferences against a defendant. Section 65(2), was construed by the EAT as in line with that principle. http://www.employmentappeals.gov.uk/uploads/UKEAT0385046122004/index.htm



2. Case Chain - How to Prove Direct Discrimination

a) Chapman/Anya - inferences
b) King - Once primary facts are decided
c) Shamoon - guidance on detriment
d) Martins - comparator
e) Igen Ltd –v- Wong - burden of proof

Chapman and another (appellants) v Simon (respondent)

In cases of direct race discrimination contrary to S1(1)(a) RRA detriment is defined at S4(2)(c) of the Act. The act must be one of which the complaint is made on the Originating Application Primary facts must be found first from which it is legitimate to draw the inference.

Anya (appellant) v. University of Oxford and another (respondents) [2001] EWCA Civ 405

The employment tribunal must make findings of primary facts first before drawing relevant inferences. In this case the ET erred in finding the Applicant, a black man was not discriminated against on the grounds of race when a post for which he was short-listed went to the other candidate. The tribunal erred when it accepted the evidence of the 2nd Respondent who was the Applicant’s supervisor and a member of the interview panel that his reasons for not choosing were nothing to do with race. Credibility is not necessarily the end of the road, since a witness may be credible, honest and mistaken. Totality of evidence has to be evaluated and in 'Anya' there was no way of doing that save through its parts.
Very little discrimination is overt or even deliberate. When there is a choice between 2 comparably well-suited candidates, judgement is capable of being influenced not consciously by idiosyncratic factors especially where equal opportunities policies were not followed.
Para 378 – When equal opportunities procedures were not followed when they should have been it may point to the possibility of conscious or unconscious racial bias having entered the process.

King V The Great Britain-China Centre [1991] IRLR 513.

Once the primary facts are decided…
(1) It is for the Applicant who complains of racial discrimination to make out his or her case. Thus, if the Applicant does not prove the case on the balance of probabilities he or she will fail.
(2) It is unusual to find direct evidence of racial discrimination. Few employers will be unwilling to admit such discrimination even to themselves. Often such discrimination is not intentional but is based on the premise that the individual, ‘would not have fitted in.
(3) The outcome of the case will usually therefore depend on what inferences it is proper to draw from the primary facts found by the tribunal.
(4) Though there will be some cases where, for example the non selection of the applicant for a post or for a promotion is clearly not on racial grounds a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is
then put forward, or if the tribunal considers the explanation to be inadequate or unsatisfactory, it will be legitimate for the tribunal to infer that the discrimination was on racial grounds.

For a Detriment or Less Favourable Treatment

In Shamoon (appellant) v. Chief Constable of the Royal Ulster Constabulary Respondent) [2003] UKHL IRLR 285

(guidance is set out that for detriment or less favourable treatment:
‘A reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work. An unjustified sense of grievance cannot amount to a detriment.’
More help is given in:
Martins (appellant) v. Marks & Spencer plc (respondents) IRLR 326 1998]

A comparator is compulsory

The question to ask is; ‘Was the complainant treated less favourably than the employers treated or would treat another person of a different racial group in the same or relevantly similar circumstances and if so was that less favourable treatment? It is compulsory to make a comparison between the treatment of the complainant and the comparator.
The Claimant must go through a two or three stage process: a) Are the comparator’s circumstances relevantly similar, only if yes then, b) was the treatment on racial grounds?
OR the hypothetical comparator:
a) Would a hypothetical comparator who was white with similar circumstances have been less favourably treated than A?
only if yes then,
b) Was the treatment on racial grounds?

Burden of Proof

The Regulations apply and the reversal of burden of proof applies. All of the discrimination legislation now shares the same provision regarding the burden of proof (S63A SDA; s54A RRA; s 17A (1C) DDA; Reg 29 (SO Regs); Reg 29 (RB Regs)).
It reads as follows:
‘Where on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation, that the respondent -
a) has committed an act of discrimination against the complainant which is unlawful by virtue of…, or
b) is by virtue of…. To be treated as having committed such an act of discrimination against the complainant.
The tribunal shall uphold the complaint unless the Respondent proves that he did not commit, or as the case may be, is not to be treated as having committed that act’.
S.54 A has the effect set out in:
Igen Ltd –v- Wong (CA 18th Feb 2005) (Conjoined with Chamberlain Solicitors & anor. v Emokpae;

Brunel University v Webster C.App, [2005] EWCA Civ 142; 18/2/05)

a) Once A has proved the primary facts then, in absence of an adequate explanation from the Respondents the ET could (at this stage in considering the inferences that can be drawn, the ET assumes that there is no adequate explanation for these facts.) conclude that the Respondent has treated A less favourably on racial grounds the burden of proof moves to the Respondents.

b) The Respondent needs to prove on the ‘balance of probabilities’ that race was not the reason for the treatment in question.

3) Apprentices Fall Within Act

A Modern Apprentice is not an 'apprentice' in the traditional sense, so as to fall within the definition of 'employee' in the Employment Rights Act 1996(which, at s203, defines 'employee' as including anybody working under a contract of service or apprenticeship). The traditional apprenticeship involved a fixed period of training, where the apprentice would supply labour and the master would supply training.
However, the 'modern apprenticeship' system (where an individual works for an employer, but is sent out to a college or other training provider for part of the working week to be trained) qualifies as a normal contract of employment and therefore the apprentice obtains employment protection through that route.

Flett v Matheson http://www.employmentappeals.gov.uk/uploads/UKEAT051604932005/index.htm

Unfair Dismissal: Upper Qualifying Age

The Employment Appeal Tribunal has handed down a judgment restating the law on the 'normal retirement age' and in the process dashing the hopes of some BA employees to claim age discrimination by the route of sex discrimination.
In Cross & ors. v British Airways, the EAT (Burton P. presiding) held:
the existing law on 'normal' (contrasted with 'contractual') retirement ages was correct;
the fact that some employees TUPE transferred to BA from British Caledonian (which had a different retirement age) some 17 years before could not impugn the tribunal's conclusion that the normal retirement age for BA staff had, in effect, harmonised;
The technique of looking at several different 'pools', to decide if the retirement policy had disparate impact on one gender, was deemed the correct approach;
The EAT added that the employer cannot rely solely on questions of cost, but can put cost into the balance (along with such other justifications as may exist).

Cross (& ors.) v British Airways

5) Compromise Agreements - Warning to Slack Drafters

The Court of Appeal has overturned the EAT's decision in Hinton v University of East London, holding that it is necessary for a compromise agreement to expressly specify the cause of action being settled in order to be effective.
Mr Hinton had raised (amongst other things) a claim under s47B of the Employment Rights Act 1996, claiming he was subjected to a detriment for making a protected disclosure.
He entered into a compromise agreement. The agreement started with a recital stating that he was agreeing to compromise all his claims. It then went on to list various causes of action but, probably through error in the drafting, did not refer expressly to a s47B claim.
The employment tribunal held that his s47B claim had not been compromised under a valid compromise agreement, so he could bring his claim. The EAT disagreed, holding that the recital at the beginning covered all claims, and the list was simply illustrative rather than exhaustive.
The Court of Appeal reinstated the ET's decision. Mummery LJ (giving the leading judgment) stated that a compromise agreement must specify the particular statutory claim being compromised or - at the very least - the factual basis of the claim (para. 22). A general 'catch-all' recital was insufficient as it did not make it clear what the "particular proceedings" (the wording from s203) being compromised were.

Hinton v University of East London 22 April 2005 EAT

6) Workers on Sick Leave Not Entitled to Holiday Pay

The Court of Appeal, in Commissioners of Inland Revenue v Ainsworth and ors, has held that the EAT was wrong to find that workers who had exhausted their entitlement to contractual and statutory sick pay could claim holiday pay, notwithstanding that they were still absent from work.
The Court overturned two controversial EAT rulings, clarifying certain aspects of working time law.
Regulation 13 of the Working Time Regulations 1998 provides that workers are entitled to four weeks' paid annual leave. The claimants in these cases were all absent from work on long-term sick leave. They brought tribunal claims seeking to establish that their entitlement to paid holiday under the Regulations endured even while they were not attending work. They based their claims on the EAT's earlier judgment in Kigass Aero Components Ltd v Brown. There, the EAT held that even though the right to paid leave under the Regulations attached to 'workers', 'that [did] not appear to import any requirement that in order to be a 'worker'; some work needs to have been done or that some attendance to do work should have occurred, either within any particular period or at all'. The EAT in this case considered itself bound by the Kigass decision, and found for the employees.

Overturning the EAT's decision, the Court of Appeal criticised the approach taken in Kigass. That decision was reasoned principally on the EAT's definition of the word 'worker' in the Regulations. A preferable approach would have been to look at the natural meaning of the word 'leave'. The Court agreed with the Inland Revenue's argument that 'leave' connotes a release from what would otherwise be an obligation - it would be contrary to all ordinary usage for a worker who is off work for a year or more as a result of serious illness to say that during some arbitrarily chosen part of that period he is taking 'leave'. Further, the Regulations are intended to ensure minimum health and safety standards in relation to working time, so that workers can expect a minimum period of release from the pressures of work. An interpretation along the lines proposed by the claimants would do nothing to further the interests of health and safety - the only result would be a windfall for the claimant.
The Court also overturned the EAT's decision in List Design v Douglas. There, the employees were able to claim that non-payment of holiday pay amounted to an unlawful deduction from wages under the Employment Rights Act 1996. S.23(1) of that Act allows claims to be brought within three months of the last in a series of deductions. Bringing a claim under this section effectively allowed the claimants to circumvent the operation of Reg 30 of the Working Time Regulations, which states that claims must be brought within three months of the initial breach of the right to annual leave. The Court in this case found that the Regulations were plainly intended to provide a single and exclusive regime for the enforcement of the new statutory rights to annual leave. This was plainly so as, when Parliament passed the Employment Rights Act 1996, the Regulations had not been made. List Design was
therefore wrongly decided, and the Inland Revenue's appeal on this issue should succeed.

Click here for the full text of this judgment: http://www.bailii.org/ew/cases/EWCA/Civ/2005/441.html

7) Equal Pay - Injury to Feelings

The EAT has handed down judgment holding that damages for non-pecuniary loss (i.e. injury to feelings, aggravated damages etc.) cannot be recovered in Equal Pay Act claims, unlike in Discrimination Act claims.
The EAT, noting the absence of a specific provision allowing awards for injury to feelings in the Equal Pay Act 1970, justified their decision on the basis that an Equal Pay claim is based on contract, whereas a discrimination claim is based on a statutory tort. Thus the quantification of damages follows a different approach. For the definitive authoriy on injury to feelings see the renowned, Vento v West Yorkshire
Police CA 2002 EWCA Civ 1871 reported at [2003] ICR 318 CA).
City of Newcastle upon Tyne v Allen http://www.employmentappeals.gov.uk/uploads/UKEAT0845041442005/index.htm

8) Whistleblowing - What Constitutes a Protected Disclosure?

Section 103A ERA provides (inserted by PIDA) that: “An employee who is dismissed shall be regarded ...
as unfairly dismissed if the reason (or if more than one the principal reason) for the dismissal is that the employee made a protected disclosure (under ERtsA s 43B)”.
43B. - (1) In this Part a "qualifying disclosure" means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following-
(a) that a criminal offence has been committed, is being committed or is likely to be committed,
(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

Definition of s43B (1)(b) - Parkins v Sodexho Ltd [2002] IRLR 109 EAT.

A legal obligation which arises from a contract of employment falls within s.43B(1)(b), which defines a qualifying disclosure as including “any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show ... that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject.” That provision is drawn very broadly and there is no reason to distinguish a legal obligation, which arises from a contract of employment from any other form of legal obligation.
S43(1)(b) continued…
(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,
(d) that the health or safety of any individual has been, is being or is likely to be endangered,
(e) that the environment has been, is being or is likely to be damaged, or
(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

Sub-s (1): In the Reasonable Belief of the Worker

This formulation means that there can still be a qualifying disclosure if the worker is later shown to have made a reasonable mistake: Darnton v University of Surrey [2003] IRLR 133, EAT:
‘For there to be a “qualifying disclosure”, it must have been reasonable for the worker to believe that the factual basis of what was disclosed was true and that it tends to show a relevant failure, even if the worker was wrong, but reasonably mistaken’.

Internal Disclosures

Disclosure to Employer or Other Responsible Person.

43C. (a) Disclosure to Employer - (1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure in good faith-
(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.

In Good Faith – Motive is all Important

Street v Derbyshire Unemployed Workers’ Centre [2004] IRLR 687, CA.

‘Where a statement is made without reasonable belief in its truth, that fact would be highly relevant as to whether it was made in good faith. But where a statement is made in that belief, it does not necessarily follow that it is made in good faith’.

External Disclosures

This can happen on a limited basis, to a minister (where the employer is a statutory body) (s.43E) or ‘prescribed persons’ (who include the Health and Safety Executive and the Financial Services Authority)
(s.43F). A qualifying disclosure can be made in obtaining legal advice to a legal adviser (s.43D).
Disclosure can also be externally on a wider basis to MP's, the police, non-prescribed regulators and, possibly, the media.

Disclosure in Other Cases

43G. - (1) A qualifying disclosure is made in accordance with this section if-
(a) the worker makes the disclosure in good faith,
(b) he 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.

Disclosure of Exceptionally Serious Failure

43H. - (1) A qualifying disclosure is made in accordance with this section if-
(a) the worker makes the disclosure in good faith,
(b) he 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.

Contractual Duties of Confidentiality

43J. - (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.

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