Job Applicants cannot claim Whistleblowing Protection rules Court of Appeal

Whistleblowing Protection

In the recent case of Sullivan v Isle of Wight Council, the Court of Appeal made an important ruling regarding whether the protection given to whistleblowers under the Employment Rights Act 1996 should be extended to job applicants as well as workers and employees.

The Law

The law regarding whistleblowing protection is contained in the Employment Rights Act 1996 (the Act).   The Act provides that workers and employees have the right not to be subjected to any detriment or to be dismissed if they make a protected disclosure or “blow the whistle”.   A disclosure only qualifies as a “protected” disclosure if it is about certain categories of information and the worker is only protected under the Act if they make the disclosure to their employer or other specified persons.  

As well as workers and employees, since 2015, the Act has conferred protection from detrimental treatment to whistle-blowers who apply for posts with NHS employers.   The law was extended to external NHS job applicants for specific reasons relating to patient safety and treatment including a recognition that there was a real need to ensure that potential whistleblowers were not deterred from raising concerns about patient safety out of fear that they may be excluded from employment within the NHS.     

The question for the Court of Appeal in this case was whether the exclusion of non-NHS job applicants from whistle-blowing protection was incompatible with Article 10 and Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention).  Broadly speaking, Article 10 of the Convention provides for the right to freedom of expression and Article 14 of the Convention prohibits discrimination against anyone who exercises that right, and any other rights protected under the Convention.  

The facts

Phyllis Sullivan (the Claimant) applied for two posts with the Isle of Wight Council, but her applications were unsuccessful.  Afterwards, she made an online crime report to the police, saying she had been verbally assaulted during the interview.  She also wrote to her Member of Parliament making various allegations about the interviewers including about the financial activities of a charitable trust, one of whose trustees was on the interviewing panel.  

As well as writing to her MP and other bodies,  the Claimant made a formal complaint to the Council who investigated the allegations and concluded that they were unfounded.  Under the Council’s complaints policy for the public, the next stage would have been to offer the Claimant the opportunity for her complaint to be reviewed by a different officer.  However, the Council decided not to offer this to the Claimant because of the extent of the investigation and the impact it had had on the staff involved.   Consequently, the Claimant brought a complaint in the Employment Tribunal claiming that, by refusing to give her the right to appeal against the outcome of her complaint, the Council had subjected her to a detriment because she had made a protected disclosure of information to her MP.  

As the Claimant was not a worker and the Council was not an NHS employer, she did not qualify for protection under whistleblowing legislation.    Instead, she argued that her rights under Article 10 and 14 of the Convention had been breached by the legislation.   She alleged that the legislation was incompatible with Articles 10 and 14 because it did not extend protection to job applicants generally, only those applying for NHS posts, and as a result her right to free speech was infringed.

After losing her argument in both the Employment Tribunal and Employment Appeal Tribunal, the Claimant appealed to the Court of Appeal.  The UK’s whistleblowing charity, Protect, also supported the Claimant’s appeal, because of the importance of the case in deciding whether whistleblowing protection should be extended to a new group of people.

The decision

The Court of Appeal ruled against the Claimant and found as follows:

1. That her situation (an applicant for work) was not comparable to that of a worker or someone applying for an NHS post and therefore she could not claim protection by analogy with them.

2. That although whistleblowing legislation protects workers and job applicants for NHS posts but not job applicants generally, any difference in treatment is objectively justified – in other words, that the reason why such groups of people are protected under the legislation and not others is because there is a legitimate aim behind it  and that extending whistleblowing protection to such groups is a proportionate way to achieve that aim.      

3. That the Claimant’s protected disclosure did not relate to her job applications in any case because she made the disclosure after her job applications were rejected.

The Court of Appeal did not agree that Parliament intended the legislation to apply to job applicants or that it should be interpreted to apply to this group of people – even though, as Protect argued in the court, whistleblowing legislation has been interpreted widely in the past to include people and situations that you would not normally associate with falling within the scope of the protection.

Points to note

The case highlights a gap in the law whereby job applicants who are rejected by potential employers because they have blown the whistle have no legal recourse (although this was not the finding of the court in this case).   Although such situations are likely to be very few and far between it is not unconceivable that an external job applicant may be rejected for interview because they have gained notoriety as a whistle-blower in a particular industry sector.   The UK’s whistleblowing charity, Protect, clearly thought there was a need for the law to protect such job applicants which is why they gave their backing to this case but ultimately the Court of Appeal thought this was a stretch too far and that it was the job of Parliament to change the law, not the courts. 

It is worth noting that, whereas whistleblowing protection does not extend to external job candidates it does apply to internal job applicants.   An employee or worker who is already employed will be protected if they are unsuccessful in applying for an internal job or promotion because they have previously “blown the whistle”.