No whistleblowing protection for applicants

A recent Court of Appeal judgment in the case of Sullivan v Isle of Wight Council has helped to clarify this important question: do applicants for employment have protection under whistleblowing legislation? 

Who has whistleblowing rights?

Currently all employees, workers and NHS job applicants are protected under the whistleblowing provisions of the Employment Rights Act 1996 (ERA), along with a handful of other individuals not normally falling within the general definition of worker for other purposes. 

As such, these categories of individual have the right not to suffer a detriment as a result of making a protected disclosure, such as a disclosure of information tending to show a criminal offence has been committed, that there has been a failure to comply with a legal obligation or that the health or safety of an individual is endangered.

The case of Sullivan v Isle of Wight Council concerned an external job applicant (Sullivan) who applied for two roles within the Isle of Wight Council (the council) and alleged that she was then subjected to detriment as a result of protected disclosures to the council, relating to broad-ranging allegations about the people who had interviewed her.

What did the court say?

Sullivan brought a claim against the council in the Employment Tribunal, alleging that the council’s decision to disapply her right to appeal under its complaints procedure was a detriment imposed on the ground that she made a protected disclosure. 

The tribunal had to decide whether she had the relevant status to bring a whistleblowing claim as she was neither a worker nor an employee, was not applying for a role within the NHS and did not fall within the other categories of individual afforded whistleblowing protection under the wording of the ERA. 

In reaching its decision, the tribunal had to consider whether an external job applicant was analogous to an internal applicant (who would either have worker or employee status) or an NHS job applicant (who is specifically protected under the ERA). The Tribunal held that an external applicant was not analogous and therefore Sullivan could not benefit from the same whistleblowing protections. Sullivan appealed to the Employment Appeal Tribunal, which upheld the decision of the Tribunal.

Sullivan then appealed to the Court of Appeal, arguing that this interpretation of the ERA breached her rights under the European Convention of Human Rights (“ECHR”). 

She asserted that Article 14 (the right to not to be discriminated against on any ground, which includes “other status”), when read with Article 10 (the right to freedom of expression), resulted in her being treated less favourably than either internal job applicants or external NHS job applicants. In reaching its decision the Court of Appeal had to consider whether external applicants could belong to an “other status” under Article 14 of the ECHR, thereby protecting them from discrimination.

Although the Court of Appeal considered that external applicants could belong to an “other status”, it found that an applicant for work is not in a materially analogous position to a worker or NHS job applicant. The court stated that the legislation is aimed at disclosures by individuals who are in work and stated that the “position of someone seeking work is materially different from someone in work”. 

It also noted that any difference in treatment was objectively justified as a proportionate means of achieving a legitimate aim. In its judgment, the court also specifically addressed the protection of NHS job applicants and noted that the ERA was amended to deal with protected disclosures relating to patient safety and treatment. It clarified that the aim of that amendment was to “ensure that persons would not be deterred from making protected disclosures because they may wish to move from one NHS body to another”.

What next?

Although there will inevitably be individuals on the periphery of the protections afforded by legislation, it seems clear from the analysis of the considerations at the time the legislation was passed that this decision is in line with parliament’s intention. On a practical level the decision provides helpful clarity that external applicants for jobs outside the NHS will not be able pursue whistleblowing detriment claims.