External job applicants do not have whistleblower protection
The recent Court of Appeal case of Sullivan v Isle of Wight Council has confirmed that external job applicants, other than those making applications within the NHS, do not have whistleblower protection.
Background
Ms Sullivan applied for two different financial positions with the Isle of Wight Council and attended interviews in October and December 2019. She was unsuccessful in her applications. In January 2020, she filed an online crime report with the police, alleging that she had been verbally assaulted during the interviews. She also made a complaint to the Council, which was investigated and it was found that there was no evidence of any wrongdoing by staff. Therefore, Ms Sullivan’s complaint was not upheld.
Ms Sullivan also sent a letter to her MP detailing certain things that had allegedly occurred at the interviews and complaining about the activities of a charitable trust (a member of the Council interviewing panel was a trustee of the trust). Ms Sullivan subsequently brought a whistleblowing claim against the Council in the Employment Tribunal (“ET”), arguing that the Council’s refusal to allow a further review of her complaint was a detriment because she had made a protected disclosure of information.
Under the Employment Rights Act 1996 (“ERA”), whistleblowing protection is provided for workers and NHS job applicants but this protection does not extend to job applicants generally. Ms Sullivan was not a worker within the meaning of the ERA, or an applicant for a post with an NHS employer. Under an ordinary interpretation of the ERA, she was therefore not afforded protection in relation to any protected disclosure she made. However, she asserted that the legislation was incompatible with Article 14 (prohibition of discrimination) and Article 10 (freedom of expression) of the European Convention of Human Rights (“ECHR”) as it protected workers and applicants for NHS posts but not job applicants generally.
Employment Tribunal Decision
The ET held it had no jurisdiction to hear the claim, and that Ms Sullivan was not in a materially analogous position to internal workers or applicants for NHS posts, for which specific whistleblowing provisions would apply.
The ET also held that treatment done on the basis that a person was a job applicant was not done on the ground of some “other status” pursuant to Article 14 of the ECHR.
Finally, the ET held that any difference in treatment was objectively justifiable.
Employment Appeal Tribunal Decision
On appeal by Ms Sullivan, the Employment Appeal Tribunal (“EAT”) upheld the decision of the ET and stated that she was not in a materially analogous position to workers or applicants of NHS posts, and that being an applicant for a job was not a status for the purpose of Article 14 of the ECHR.
Court of Appeal Decision
Ms Sullivan appealed to the Court of Appeal which dismissed her appeal. It was again held that she was not in a materially analogous or relevant similar position to the other groups. The Court held that the legislation is aimed at disclosures by those in work and that the position of someone seeking work was materially different to someone in work.
The Court distinguished whistleblowing protection afforded to NHS job applicants, stating that the need to safeguard patient safety, and to ensure that those who disclosed information relevant to those issues were not disadvantaged in the NHS recruitment process, did not apply to job applicants in other sectors.
However, the Court held that external job applicants could belong to some “other status” pursuant to Article 14 of the ECHR, which prohibits discrimination on any ground such as sex, race, or other specified grounds or “other status”. It was a characteristic capable of distinguishing one group from another and was also an acquired characteristic, resulting from something that an individual had chosen to do, for instance, apply for a job.
It was further considered whether any difference in treatment was objectively justifiable. The Court considered that Parliament had implicitly in 1998 and explicitly in 2015 considered whether the legislation should be amended to include job applicants and had rejected the proposed amendment. Therefore, Parliament had weighed the competing interests of the wider community to encourage disclosure of information, the interests of workers, applicants for posts in the NHS and applicants more widely.
Finally, it was confirmed that, in relation to the scope of the claim, Ms Sullivan had suffered a detriment by not being allowed to pursue her complaint about alleged financial irregularities at a charitable trust. This complaint was made as a member of the public and was not made in connection with the fact that she had applied for a job with the Council.
Comment
This case serves as a useful reminder and confirmation by the Court of Appeal that job applicants are not generally afforded protection if they raise whistleblowing concerns during the recruitment process.
The judgment is also significant in recognising that being a job applicant could constitute some “other status” for the purpose of Article 14 of the ECHR.
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