External job applicant blocked from bringing whistleblowing claim
The Employment Appeal Tribunal has found that an external job applicant was not a 'worker' for the purposes of whistleblowing protection. This meant the Tribunal had no jurisdiction to hear her claim.
Background
In the case of Sullivan v Isle of Wight Council, the claimant (Ms Sullivan), argued that as an external job applicant she should count as a worker for the purposes of bringing a whistleblowing detriment claim. Ms Sullivan accepted that the wording of the relevant statutory provision did not provide for external job applicants to be workers for these purposes. However, she argued that to deny her rights because of her occupational status would be a breach of Article 14 of the European Convention on Human Rights (ECHR). Article 14 is the right for other ECHR rights to be secured without discrimination, including due to status.
Facts
Ms Sullivan applied for two jobs at the Council. She was unsuccessful in both applications and subsequently made a number of allegations relating to the conduct of the interview panel both in the recruitment process and more widely in their professional lives. As a result, the Council conducted an investigation under its disciplinary procedure. The investigation found there was no evidence of wrongdoing and therefore no disciplinary case to answer.
The investigation that had taken place was thorough and took significant time to complete. As a result, the Council decided not to allow Ms Sullivan a right of appeal under its complaints procedure. She claimed that this was a detriment because she had made a protected disclosure.
Worker status for whistleblowing purposes
It was accepted that as an external job applicant, Ms Sullivan was not a 'worker' under the relevant statutory provision and that therefore her right to bring the whistleblowing claim was in issue. Ms Sullivan argued that a wider statutory interpretation should be applied. She referred to the Supreme Court judgment in the case of Gilham v Ministry of Justice in which judicial office holders were permitted to bring whistleblowing detriment claims. Ms Sullivan argued that the Gilham case should be applied to allow her to also bring her claim.
The Employment Tribunal disagreed. It found that whilst Ms Sullivan's arguments could potentially engage her Convention rights, as an external job applicant she was not in an analogous situation with an existing employee or worker. She was also not in an analogous situation with a job applicant for a role with an NHS employer, for which separate specific whistleblowing protection applies. The Tribunal was also not convinced that the status of job applicant was one of the statuses intended to be covered by Article 14. In addition and in any event, the Tribunal found that the Council was reasonably justified in its treatment of Ms Sullivan. Ms Sullivan appealed to the Employment Appeal Tribunal (EAT).
EAT decision
The EAT dismissed Ms Sullivan's appeal. It agreed with the Tribunal that an external job applicant was not in an analogous situation to that of an internal applicant who is already embedded in the workplace. The internal applicant does not derive their whistleblowing rights from their job applicant status, but rather from their existing worker relationship. In addition, the EAT agreed with the Tribunal's findings in respect of NHS job applicants and also found that being an external job applicant was not comparable to the status of judicial office holder in Gilham. It also found that the disclosure Ms Sullivan was relying upon did not relate to the job application process in any event. The alleged detriment related to the complaints procedure which it was open to anyone to invoke, regardless of their job applicant status.
Learning points
This is a useful case that shows how Gilham is applied, and in particular the limits of that judgment in respect of the categories of individual who might be entitled to bring whistleblowing detriment claims as a result.