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.