Does whistleblowing protection apply to external job applicants (outside the NHS)?

In the recent case of Sullivan v Isle of Wight Council, the Court of Appeal (CA) confirmed that external job applicants, other than those applying for roles within the NHS, are not entitled to whistleblower protections.

What is whistleblowing protection?

Workers are granted legal protection, subject to conditions, when they engage in whistleblowing (i.e. make a protected disclosure in the public interest about specified forms of wrongdoing).

In this context, a ‘worker’ is not just someone working under a contract of employment or a contract to do any work or perform services personally. There is an extended definition which includes others, such as agency workers.

In response to concerns about how NHS organisations deal with issues raised by staff about substandard and sometimes unsafe patient care, job applicants in the NHS are also classed as ‘workers’ when it comes to protection from detriment because they have made a protected disclosure, but other job applicants are not expressly covered.

The background to Sullivan v Isle of Wight Council

In 2019, Ms Sullivan applied for two roles at the Isle of Wight Council (Council) but was unsuccessful on both occasions. A few months later, she made various reports of alleged wrongdoing. She filed an online crime report claiming that she was verbally assaulted during the interviews, and that a member of the interviewing panel had acted fraudulently in his role as a trustee of a charitable trust. Ms Sullivan also raised these issues with her local MP and the Care Quality Commission.

Following an investigation internally, the Council found the claims to be unsubstantiated and, in accordance with their complaints policy, Ms Sullivan was denied the right to appeal.

Ms Sullivan brought an Employment Tribunal claim on the basis that her allegations were protected disclosures and that denying her the right to appeal amounted to a detriment. As she was not a worker, or applying to the NHS, she was not entitled to whistleblowing protection. She therefore argued that the legislation (principally the Employment Rights Act 1996) was incompatible with Article 14 (prohibition of discrimination due to ‘other status’), when read with Article 10 (freedom of expression), of the European Convention on Human Rights (ECHR) because it protected workers and applicants for NHS posts, but not job applicants generally.

Employment Tribunal and Employment Appeal Tribunal (EAT) decisions

Ms Sullivan was unsuccessful in the Employment Tribunal which concluded that external job applicants are not comparable to an internal applicant, who would have worker or employee status, or an NHS job applicant. Hence, Ms Sullivan could not be entitled to whistleblowing protections.

Ms Sullivan was also unsuccessful on appeal. The EAT upheld the original decision and confirmed that external job applicants are not of the same status as those who are entitled to whistleblower protections, i.e. workers and NHS job applicants. The EAT further confirmed that being a job applicant was not a status pursuant to Article 14 of the ECHR.

Ms Sullivan then appealed to the CA.

The Court of Appeal decision

The CA dismissed her appeal. Whilst they found that Article 14 was capable of encompassing job applicants, protecting them from discrimination, it found that the position of external job applicants is not materially comparable to that of a worker and to job applicants specifically within the NHS. The CA were of the view that an applicant seeking work is “materially different from someone in work”.

The CA ruled that it was proportionate to exclude external job applicants from whistleblowing protections as it pursued a legitimate aim in limiting protections to those who are existing workers. The CA also held that the principles of statutory interpretation didn’t allow for the legislation to be read in a way which would mean all job applicants are caught by the provisions, particularly considering that Parliament had expressly decided against extending the protections to all job applicants in 2015.

Even if Ms Sullivan had managed to persuade the CA that job applicants were protected under the ERA under one of these routes, the CA agreed with the EAT that the whistleblowing legislation would not have applied to Ms Sullivan’s claim because it did not relate to something connected to her job applications. The CA held that Ms Sullivan had made her complaint about the financial irregularities at the charitable trust as a member of the public, so whistleblowing legislation did not apply.

Key takeaways for schools

The outcome of this case is a useful reminder to schools that external job applications are generally not entitled to the same whistleblowing protections as current workers.

However, this case does not change the fact that, under the Equality Act 2010, all job applicants remain protected from unlawful discrimination by a prospective employer on the grounds of a protected characteristic (age, sex, race etc). Schools should therefore still ensure that applications are treated fairly and that they respond appropriately to any complaints raised during recruitment processes.