Whistleblowing and the Former Solicitor: Disclosure Protection Under s.43D ERA

Analysis of GQA Qualifications Ltd v Clayton, where the High Court held that s.43D ERA protection extends to disclosures made to any person the worker believes is competent to provide legal advice, not just qualified lawyers.

The Core Question

When an employee discloses confidential information to seek legal advice, when does whistleblowing protection apply? The High Court's decision in GQA Qualifications Ltd v Clayton [2026] EWHC 114 (KB) provides important guidance on the scope of s.43D of the Employment Rights Act 1996.

The Facts

C was the CEO and a director of GQA Ltd, a company limited by guarantee. A dispute arose regarding "Project Gemini". a proposal to restructure the company's profit distribution. C believed the scheme was unethical and not in the company's best interests. He consulted F, a former solicitor who ran a legal services company and had previously advised GQA Ltd.

In October 2024, C sent F documents relating to the scheme. F advised that the proposal might involve criminal conspiracy to commit fraud. In November 2024, C sent further documents to both F and to G, the owner of a marketing services company. On F's advice, C purported to suspend the other directors and notified stakeholders that fraud investigations were pending.

GQA Ltd removed C as a director and terminated his employment, then brought claims in the High Court for breach of contract, breach of statutory duties under the Companies Act 2006, and breach of confidence.

The Whistleblowing Defence

C argued he had a "lawful excuse" for disclosing confidential material if the disclosure fell within the definition of a "protected disclosure" under the ERA's whistleblowing regime. The key provision was s.43D: disclosure made "in the course of obtaining legal advice."

The High Court observed that a lawful excuse would be made out if the disclosure qualified as a protected disclosure. This required:

A "qualifying disclosure" under s.43B (information tending to show a relevant failure, made in the reasonable belief that it is in the public interest); and
Made by one of the protected methods in ss.43C–43H.

Meaning of "Legal Advice"

The central issue was the scope of "legal advice" under s.43D. GQA Ltd argued that protection should be restricted to disclosures to qualified lawyers, those to whom legal professional privilege would attach.

The High Court disagreed. The proper interpretation is that s.43D is not restricted to obtaining legal advice from persons whose advice would be privileged. It covers "legal advice" from any person whom the worker believes is competent to provide advice on the relevant law, such as a former solicitor like F.

The Court noted that within the whistleblowing regime, workers commonly seek legal advice from various sources: trade union officials, Citizens Advice Bureau, Law Centres. Workers presume these advisers are competent on workplace law even if not qualified lawyers.

The "In the Course Of" Test

The Court also considered the meaning of "in the course of obtaining legal advice." This phrase is broad enough to encompass:

Disclosure to qualified lawyers;
Disclosure to persons the worker regards as competent to provide legal advice;
Disclosure to third parties assisting in obtaining legal advice (e.g., factual information to support the person providing legal advice); and
Disclosure to "fill in the gaps" so the adviser has full information.

Application to the Facts

C's disclosure to F (October and November): Covered by s.43D. C regarded F as competent to provide legal advice based on their prior relationship. The disclosure was not in breach of confidence.

C's disclosure to G (November): Not covered. G did not hold himself out as someone who could provide legal advice, and C did not disclose documents for the purpose of obtaining legal advice. This was an unauthorised disclosure and a breach of C's contract of employment.

Other Claims Considered

The High Court also held that C had breached s.171(a) CA 2006 by purporting to suspend the other directors, this was outside his powers as a director under GQA Ltd's constitution. However, he had not breached his duty to promote the success of the company (s.172) because his objection to directors receiving large payments was genuine and strongly held.

Comment

This judgment provides useful guidance on s.43D ERA, which had not previously been authoritatively considered by the EAT or senior courts. The broad interpretation of "in the course of obtaining legal advice" is noteworthy:

It could extend to advice from a union official, CAB volunteer, HR consultant, or ex-solicitor;
The worker must believe the person is competent to provide legal advice and/or holds themselves out as offering legal advice;
The disclosure must be made for the purpose of obtaining legal advice.

The parliamentary record places the GQA interpretation under strain. In the Lords Second Reading (11 April 1998), Lord McCarthy raised the precise question, at col. 897, of why s.43D's protection for seeking "legal advice" did not extend to a union representative. Lord Haskel (for the Government) did not dispute the distinction. His response directed trade union disclosures firmly to s.43G, not s.43D: "where trade union representatives are not part of the internal disclosure procedure, a disclosure made to them would have to be considered under Section 43G." Lord McCarthy subsequently proposed a specific amendment to s.43D to add "obtaining advice from a recognised trade union". Lord Haskel said only that the Government would "consider" it. No such amendment was made. Lord Borrie's opening speech described the Bill's external disclosure structure as "tight", deliberately tiered, with s.43D occupying a distinct, privileged slot analogous to legal professional privilege. The inference is that Parliament understood s.43D as a narrow conduit for disclosures to professional legal advisers, not a general advice channel.

That parliamentary record gives real traction to a future Pepper v Hart [1993] AC 593 challenge. The preconditions are arguably met: "legal advice" in s.43D is ambiguous, the section specifies the activity but not the provider, leaving open exactly the question the High Court had to resolve. The ministerial response directing TU officials to s.43G rather than s.43D is a sufficiently clear statement of intended scope. In the Commons, the Minister of State Ian McCartney was reported to have been explicit in Standing Committee D (11 March 1998) that s.43D "is not intended to cover trade union officials" and was designed for "professional legal advisers". a statement that would almost certainly be admissible under Pepper v Hart. A future appellant could argue the High Court's belief-based test effectively collapses s.43D into s.43G, undermining the "tight structure" Parliament deliberately constructed. The counter-argument is that a court might find no genuine ambiguity in "legal advice" as such, in which case the ministerial record becomes inadmissible regardless of its content. On that view, the High Court has the last word unless the Court of Appeal takes a narrower view of the provider question.

Practical Takeaways

For workers: Whistleblowing protection for seeking legal advice is broader than legal professional privilege. You can disclose confidential information to anyone you reasonably believe is competent to give legal advice. But the purpose must genuinely be to obtain that advice.
For employers: Not every disclosure to a third party will be protected. Check whether the recipient holds themselves out as providing legal advice and whether the disclosure was genuinely for that purpose.
Breach of confidence claims: Where a worker can establish s.43D protection, this provides a "lawful excuse" defence to breach of confidence. But the defence is all-or-nothing: unprotected disclosures remain actionable.

Case Reference

GQA Qualifications Ltd v Clayton [2026] EWHC 114 (KB)