Enterprise and Regulatory Reform Bill
Addendum to the Delegated Powers Memorandum by the
Department for Business, Innovation and Skills for the
Delegated Powers and Regulatory Reform Committee
Introduction
This addendum to the Delegated Powers memorandum previously submitted to the
Delegated Powers and Regulatory Reform Committee deals with a new power to be
included in the Enterprise and Regulatory Reform Bill following a Government
amendment which has been tabled to the Bill.
The memorandum sets out:




The context and purpose of the power;
The Government’s justification for seeking the power;
The extent to which the power is novel, or draws on precedents;
The justification for the procedure proposed for the power sought.
The Department for Business, Innovation and Skills has considered the use of this
additional power in the Bill as set out below and is satisfied that it is necessary and
justified.
Part 2 – Employment
The amendment to clause 15 amends the definition of "worker" in section 43K of the
Employment Rights Act 1996 and introduces a power to make further amendments to
that definition by Order (subject to the affirmative resolution procedure).
Clause 15: Disclosures not protected unless believed to be made in the public
interest
Power conferred on: Secretary of State
Power exercised by: Order
Parliamentary procedure: Affirmative Resolution Procedure
Context and purpose
A worker who makes a protected disclosure within the meaning of the Part IVA
Employment Rights Act 1996 (“ERA”) has a right not to be unfairly dismissed and a
right not to suffer a detriment as a result of having made such a disclosure. Section
43K ERA defines who is a “worker” for the purposes of the whistle-blowing
protections contained in Part IVA ERA.
The definition of “worker” in section 43K ERA is broader than the definition of
“worker” in section 230 ERA, which applies to rights set out elsewhere in the ERA.
1
The objectives of this enhanced definition are two-fold. The first is to increase the
number of people in the workplace who can avail themselves of the protection of the
statute and the second is to support a wider group of people in making public interest
disclosures. This power allows the Secretary of State to amend the definition of
“worker” through secondary legislation.
Justification
At Committee Stage in the House of Lords the Government is tabling amendments to
the existing definition of ”worker” in section 43K of the ERA to incorporate
references to particular arrangements in the NHS; those amendments demonstrate
why this power is needed. Over time, the nature of employment relationships may
change and the Government may wish to add or remove categories in the definition of
‘worker’ so that the protections reflect the different kinds of working arrangements
which exist. It is unsatisfactory to have to wait for primary legislation before being
able to make such amendments as, in the interim, large numbers of people may fall
outside the scope of the whistle-blowing regime. Not only would such people be
deprived of employment safeguards, but the lack of protection may impact on whether
an individual decides to make the disclosure. Where an individual fails to speak out, it
is likely that the subject matter of the disclosure (e.g. abuse) will continue without
being brought to the attention of those who should deal with it. This power will
enable problems with the definition of “worker” to be addressed more quickly. A
category will only be removed from the definition of “worker” where it becomes the
Secretary of State is satisfied that there are no longer any individuals in that category
and therefore it has become obsolete.
Extent to which the power is novel or draws on precedent
The power is not based on an existing precedent in employment law.
Procedure justification
The affirmative procedure is considered appropriate for this power as the power could
be used to amend the definition of “worker” (adding or removing categories of
individuals), thereby changing the scope of the whistle-blowing protections.
Department for Business, Innovation and Skills
29 November 2012
2