Whistleblowing rights and job applicants – what schools need to know

Understanding whistleblowing protection

Whistleblowing protection under the Employment Rights Act 1996 (ERA) is designed to protect workers who speak up about wrongdoing in the workplace, for example, safeguarding failures, financial mismanagement or breaches of legal duties. 
A worker who makes a qualifying disclosure (often referred to as a “protected disclosure”) is protected in two key ways.

First, they are protected from being subjected to a detriment by their employer or colleagues, such as being denied training opportunities, facing disciplinary action, or being treated unfairly as a result of raising concerns.

Second, they are protected from being dismissed because they have made a protected disclosure. A dismissal on these grounds will be automatically unfair, and employees do not need two years’ service to bring a claim.

The protection typically applies to existing workers or employees, and in some circumstances to those with a prospective employment relationship (such as NHS job applicants). Whether the protection extends to external job applicants in other sectors has now been clarified by the Court of Appeal.

Background

In Sullivan v Isle of Wight Council, the Court of Appeal considered whether it was lawful under human rights law for whistleblowing protection under the ERA to exclude external job applicants. The claimant had applied unsuccessfully for two roles and later raised a complaint about the interview process. She alleged that her treatment amounted to a detriment for making a protected disclosure and argued that the ERA’s protections should extend to job applicants.

She relied on Article 14 of the European Convention on Human Rights, which prohibits discrimination in the exercise of other Convention rights, including freedom of expression under Article 10. Although the Employment Tribunal and the Employment Appeal Tribunal had rejected her claim, she appealed to the Court of Appeal.

The Court of Appeal’s decision

The Court accepted that the claimant’s position as a job applicant could fall within the scope of Article 14 but concluded that she was not in a comparable position to applicants for NHS roles, where statutory protection for whistleblowing detriment does apply.
The Court found that the exclusion of external job applicants from ERA protection pursued a legitimate aim—namely, restricting whistleblowing protection to individuals who have an employment or prospective employment relationship. This was held to be a proportionate and justifiable approach. The Court also found no link between the alleged detriment and the job applications themselves, meaning the claim could not proceed under the ERA.

Learning points for schools

For schools, this judgment confirms that external candidates applying for teaching or support staff roles are not protected by whistleblowing detriment laws. However, schools should still treat complaints raised during recruitment processes carefully, especially where internal recruitment policies or safeguarding concerns are engaged.

While unsuccessful applicants cannot bring whistleblowing detriment claims, failing to follow recruitment procedures fairly could still result in reputational damage or, in rare cases, claims under other legal frameworks (such as discrimination). Schools should ensure recruitment panels understand both their legal responsibilities and the importance of dealing with concerns transparently and respectfully.

For more information or advice, please contact Joanne Oliver in our Employment team.