Job applicants not protected as whistleblowers

In Sullivan v Isle of Wight Council, the EAT considered the extent of whistleblowing protection for job applicants.

The Claimant applied for two jobs at the Isle of Wight Council. After being informed that she had been unsuccessful, she filed an online crime report with the Hampshire Police concerning an alleged verbal assault during one of the interviews and also filed a report on the Council’s confidential safeguarding helpline. She sent a copy to the Council’s Chief executive along with documents alleging financial impropriety, and gave the Chief Executive 28 days to respond, failing which she would progress her complaint to the Local Government and Social Care Ombudsman. The Claimant subsequently also contacted her MP and claimed that doing so was a protected disclosure (an act of whistleblowing). The Council considered her complaints and responded, but did not provide her with a right of appeal.

The Claimant alleged that the failure to allow her the right to appeal was a detriment on grounds of her whistleblowing.

The EAT had to consider whether, as a job applicant, she was permitted to bring a claim under the whistleblowing provisions. The Claimant accepted that she was not a “worker” and on the face of it was not therefore protected by the rules on detriment for whistleblowing. However, she claimed that this lack of protection was in breach of her rights under the European Convention on Human Rights (ECHR) to freedom of expression and freedom from discrimination. There are specific whistleblowing protections for job applicants in the NHS and she considered that such protection should be extended to her.

The EAT therefore had to consider the following questions in relation to whether the UK law had to be interpreted in her favour to uphold her ECHR rights:

• Was an ECHR right engaged?
• Was she treated less favourably than others in an analogous situation?
• Was the treatment based on a listed ground or other status?
• Was the treatment proportionate?

The EAT found that:

• The right to freedom of expression was engaged.
• She had not been treated less favourably than an analogous person: she could not compare herself to either an internal applicant for a council position or an external applicant to the NHS as their situations were materially different.
• Being an external applicant was not a sufficient “other status” to warrant protection because it was an act she chose to make, not a personal characteristic.
• It would not have been proportionate to read an amendment to the definition of “worker” to permit her claim.

Her claim therefore failed. Whilst external job applicants are protected against discrimination, they are not currently protected against a detriment due to whistleblowing, unless they are specifically protected in other legislation (eg in the NHS).

If you have any queries you would like to discuss regarding job applicants not being protected as whistleblowers, please contact Rena Magdani or Matt McBride.

Read the other recent Employment articles:

• Settling future claims as whistleblowers
• Consultation on Employment Tribunal fees
• Codes of Practice and Guidance