External job applicants not protected by whistleblowing law

In Sullivan v Isle of Wight Council the Claimant applied for two jobs at the Isle of Wight Council, and was unsuccessful. She filed an online crime report alleging that she had been subject to a verbal assault during an interview, then sent a letter to her MP detailing certain things that had happened at her interviews and complaining about the activities at a charitable trust at which one of the interviewers was a trustee. She made a complaint to the Council, but the Council failed to follow its complaints policy and refer the matter to an officer for review.

The Claimant brought a claim stating that:

• She had made a protected disclosure (whistleblown).
• The Council had failed to escalate her concern in accordance with their policy because of her disclosure.
• She had therefore been subject to an unlawful detriment by reason of her protected disclosure.

The provisions within the Employment Rights Act that protect whistleblowers protect:

• Workers.
• Applicants for posts with the NHS.

The reason for the latter provision was to foster a culture of safety within the NHS and to encourage people to raise concerns without the fear that it would inhibit their future prospects within the NHS.

On the face of it, the Claimant was not protected by whistleblowing law as she was neither a worker of the Council, nor applying for a job in the NHS. She brought her claim by asserting that it was contrary to the European Convention on Human Rights for her to be discriminated against by not being provided with the same protection as a worker or NHS applicant.

After her claims failed in the Employment Tribunal and the EAT, the Court of Appeal dismissed her appeal, finding that:

• Her position as a job applicant was not comparable to a worker who was an internal applicant for a role.
• Her position was not comparable to an applicant for an NHS role as those provisions had been inserted into the legislation to deal with a specific and urgent problem that could not be said to apply to all job applicants.
• Even if the situations were comparable, any differential treatment was objectively justified due to the purposes of the legislation (and the Court noted that in 2015 the Government had expressly considered whether to extend whistleblower protection to all job applicants and had decided not to do so).

The Court of Appeal therefore confirmed that the legislation can be interpreted at face value and that external job applicants are not protected by the whistleblower provisions (save in relation to the applications to work in the NHS).

Employers should note that this does not affect discrimination law, and applicants for any job are protected against discrimination on grounds of a protected characteristic.