Court of Appeal confirms limits of whistleblowing rights for job applicants

Background

In Sullivan v Isle of Wight Council, the Court of Appeal considered whether the exclusion of external job applicants from whistleblowing detriment protection under the Employment Rights Act 1996 (ERA) was compatible with the European Convention on Human Rights (ECHR).

The claimant, after unsuccessfully applying for two roles with the respondent, made a complaint about the interview process. The respondent found her complaint unsubstantiated and, in breach of its own policy, did not offer her a further review. She brought a tribunal claim, arguing she had suffered a detriment for having made a protected disclosure and that applicants should be covered by the ERA's whistleblowing protections.

Article 14 of the ECHR prohibits discrimination in the enjoyment of Convention rights, including Article 10 - the right to freedom of expression. While the tribunal and EAT dismissed the claim, the claimant appealed, arguing the ERA's exclusions of job applicants amounted to unlawful discrimination.

See our previous article on the EAT decision on the external job applicant blocked from bringing whistleblowing claim.

Court of Appeal's decision

The Court of Appeal held that the claimant's status as a job applicant could fall within 'other status' under Article 14. However, it agreed with the lower courts that the claimant was not in a comparable position to applicants for jobs within the NHS (who are covered by the ERA's whistleblowing detriment provisions).

The Court found the exclusion of external applicants pursued a legitimate aim - limiting whistleblowing protection to those with an existing or prospective employment relationship. It held this was a proportionate approach, and therefore justified. The Court also agreed that the claimant's alleged detriment was not linked to her job applications and could not form a basis of a whistleblowing claim under the ERA.

Learning points for employers

This case confirms that, unless applying for NHS roles, external job applicants are not protected from detriment for whistleblowing under the ERA. Employers should still respond appropriately to complaints made during recruitment, particularly where internal policies apply, but can take reassurance that whistleblowing legislation does not extend protection to unsuccessful applicants outside the employment relationship.

For more information or advice, please contact Sofia Efstathiou in our Employment team on 07340 625 556, or complete the form below.