Section 43K Extension of meaning of “worker” etc. for Part IVA.F1

England, Wales and Scotland

(1)

For the purposes of this Part “ worker ” includes an individual who is not a worker as defined by section 230(3) but who—

(a)

works or worked for a person in circumstances in which—

(i)

he is or was introduced or supplied to do that work by a third person, and

(ii)

the terms on which he is or was engaged to do the work are or were in practice substantially determined not by him but by the person for whom he works or worked, by the third person or by both of them,

(b)

contracts or contracted with a person, for the purposes of that person’s business, for the execution of work to be done in a place not under the control or management of that person and would fall within section 230(3)(b) if for “personally” in that provision there were substituted “(whether personally or otherwise)”,

C1( C2 F2 ba )

works or worked as a person performing services under a contract entered into by him with F3NHS England F4under F5section 83(2), 84, 92, 100, 107, 115(4), 117 or 134 of, or Schedule 12 to, the National Health Service Act 2006 or with a Local Health Board under F6section 41(2)(b), 42, 50, 57, 64 or 92 of, or Schedule 7 to, the National Health Service (Wales) Act 2006,

C3( F7 bb )

works or worked as a person performing services under a contract entered into by him with a Health Board under section 17J F8or 17Q of the National Health Service (Scotland) Act 1978,

(c)

F9works or worked as a person providing services in accordance with arrangements made—

(i)

by F10NHS England F11under section 126 of the National Health Service Act 2006, orF12Local Health Board under F13section 71 or 80 of the National Health Service (Wales) Act 2006, or

C4( ii )

by a Health Board under section F142C, 17AA, 17C, F15 . . . 25, 26 or 27 of the National Health Service (Scotland) Act 1978, or

(F16cb)

is or was provided with work experience provided pursuant to a course of education or training approved by, or under arrangements with, the Nursing and Midwifery Council in accordance with article 15(6)(a) of the Nursing and Midwifery Order 2001 (S.I. 2002/253), or

(d)

is or was provided with work experience provided pursuant to a training course or programme or with training for employment (or with both) otherwise than—

(i)

under a contract of employment, or

(ii)

by an educational establishment on a course run by that establishment;

and any reference to a worker’s contract, to employment or to a worker being “ employed ” shall be construed accordingly.

(2)

For the purposes of this Part “ employer ” includes—

(a)

in relation to a worker falling within paragraph (a) of subsection (1), the person who substantially determines or determined the terms on which he is or was engaged,

(F17aa)

in relation to a worker falling within paragraph (ba) of that subsection, F18NHS England, or the Local Health Board referred to in that paragraph,

(F19ab)

in relation to a worker falling within paragraph (bb) of that subsection, the Health Board referred to in that paragraph,

(b)

in relation to a worker falling within paragraph (c) of that subsection, F20NHS England or the board referred to in that paragraph, and

(c)

in relation to a worker falling within paragraph F21(cb) or (d) of that subsection, the person providing the work experience or training.

(3)

In this section “ educational establishment ” includes any university, college, school or other educational establishment.

(F224)

The Secretary of State may by order make amendments to this section as to what individuals count as “ workers ” for the purposes of this Part (despite not being within the definition in section 230(3)).

( 5 )

An order under subsection (4) may not make an amendment that has the effect of removing a category of individual unless the Secretary of State is satisfied that there are no longer any individuals in that category.

Annotations

Textual amendments

F1: Pt. IVA (ss. 43A-43L) inserted (2.7.1998 for specified purposes and otherwise 2.7.1999) by 1998 c. 23, s. 1; S.I. 1999/1547, art. 2
F2: S. 43K(1)(ba) inserted (1.4.2004 for E.W.) by Health and Social Care (Community Health and Standards) Act 2003 (c. 43), ss. 184, 199(1)(4), Sch. 11 para. 65(2); S.I. 2004/288, art. 5(2)(x) (with transitional provision in art. 7(11)) (as amended by S.I. 2004/866, S.I. 2004/1009 and S.I. 2005/2925); S.I. 2004/480, art. 4(2)(bb) (as amended by S.I. 2004/1019 and S.I. 2006/345)
F3: Words in s. 43K substituted (1.7.2022) by Health and Care Act 2022 (c. 31), s. 186(6), Sch. 1 para. 1(1)(2); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)
F4: Words in s. 43K(1)(ba) substituted (1.3.2007) by National Health Service (Consequential Provisions) Act 2006 (c. 43), ss. 2, 8(2), Sch. 1 para. 178(a) (with Sch. 3 Pt. 1)
F5: Words in s. 43K(1)(ba) substituted (25.6.2013) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 20(2)(a), 103(2) (with s. 24(6))
F6: Words in s. 43K(1)(ba) substituted (25.6.2013) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 20(2)(b), 103(2) (with s. 24(6))
F7: S. 43K(1)(bb) inserted (1.4.2004) by The Primary Medical Services (Scotland) Act 2004 (Consequential Modifications) Order 2004 (S.I. 2004/957), art. 2, Sch. para. 8(a)(i)
F8: Words in s. 43K(1)(bb) inserted (25.6.2013) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 20(3), 103(2) (with s. 24(6))
F9: Words in s. 43K(1)(c) substituted (25.6.2013) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 20(4)(a), 103(2) (with s. 24(6))
F10: Words in s. 43K(1)(c)(i) inserted (1.10.2002) by National Health Service Reform and Health Care Professions Act 2002 (c. 17), s. 2(5), Sch. 2 Pt. 2 para. 63; S.I. 2002/2478, arts. 2(1), 3(1)
F11: Words in s. 43K(1)(c)(i) inserted (1.3.2007) by National Health Service (Consequential Provisions) Act 2006 (c. 43), ss. 2, 8(2), Sch. 1 para. 178(b)(i) (with Sch. 3 Pt. 1)
F12: Words in s. 43K(1)(c)(i) substituted (1.4.2007) by The References to Health Authorities Order 2007 (S.I. 2007/961), art. 3, Sch. {para. 27(2)}
F13: Words in s. 43K(1)(c)(i) substituted (1.3.2007) by National Health Service (Consequential Provisions) Act 2006 (c. 43), ss. 2, 8(2), Sch. 1 para. 178(b)(ii) (with Sch. 3 Pt. 1)
F14: Words in s. 43K(1)(c)(ii) inserted (25.6.2013) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 20(4)(b), 103(2) (with s. 24(6))
F15: Word in s. 43K(1)(c)(ii) repealed (1.4.2004) by The Primary Medical Services (Scotland) Act 2004 (Consequential Modifications) Order 2004 (S.I. 2004/957), art. 2, Sch. para. 8(a)(iii)
F16: S. 43K(1)(cb) inserted (6.4.2015) by The Protected Disclosures (Extension of Meaning of Worker) Order 2015 (S.I. 2015/491), arts. 1, 2(2)
F17: S. 43K(2)(aa) inserted (1.4.2004 for E.W.) by Health and Social Care (Community Health and Standards) Act 2003 (c. 43), ss. 184, 199(1)(4), Sch. 11 para. 65(3); S.I. 2004/288, art. 5(2)(x) (as amended by S.I. 2004/866, S.I. 2004/1009 and S.I. 2005/2925); S.I. 2004/480, art. 4(2)(bb) (as amended by S.I. 2004/1019 and S.I. 2006/345)
F18: Words in s. 43K(2)(aa) substituted (1.4.2013) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 5 para. 73(c); S.I. 2013/160, art. 2(2) (with arts. 7-9)
F19: S. 43K(2)(ab) inserted (1.4.2004) by The Primary Medical Services (Scotland) Act 2004 (Consequential Modifications) Order 2004 (S.I. 2004/957), art. 2, Sch. para. 8(b)
F20: Words in s. 43K(2)(b) substituted (1.7.2022) by Health and Care Act 2022 (c. 31), s. 186(6), Sch. 1 para. 5; S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)
F21: Words in s. 43K(2)(c) inserted (6.4.2015) by The Protected Disclosures (Extension of Meaning of Worker) Order 2015 (S.I. 2015/491), arts. 1, 2(3)
F22: S. 43K(4)(5) inserted (25.4.2013 for specified purposes) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 20(7), 103(1)(i)(2) (with s. 24(6))

Modifications

C1: S. 43K(1)(ba) modified (E.) (1.4.2004) by The General Medical Services and Personal Medical Services Transitional and Consequential Provisions Order 2004 (S.I. 2004/865), art. 109(2)(f)
C2: S. 43K(1)(ba) modified (W.) (1.4.2004) by The General Medical Services Transitional and Consequential Provisions (Wales) (No. 2) Order 2004 (S.I. 2004/1016), art. 85(2)(f)
C3: S. 43K(1)(bb) modified (S.) (1.4.2004) by The General Medical Services and Section 17C Agreements (Transitional and other Ancillary Provisions) (Scotland) Order 2004 (S.S.I. 2004/163), art. 96(2)(d)
C4: S. 43K(1)(c)(ii) modified (temp) (25.6.2013) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 20(10), 103(2) (with s. 24(6))

Notes on the whole Act

Textual amendments

F1: Part 2B heading and s. 27C inserted (E.W.S.) (31.7.2023 for specified purposes, 1.10.2024 in so far as not already in force) by Employment (Allocation of Tips) Act 2023 (c. 13), ss. 1, 14(2); S.I. 2023/876, reg. 3(a); S.I. 2024/829, reg. 3(a)