Job applicants and whistleblowing
Fergus McCombie an Louisa Simpson consider a recent Court of Appeal case concerning whether job applicants are entitled to whistleblower protection.
Sullivan v Isle of Wight Council [2025] EWCA Civ 379 (03 April 2025)
P Sullivan v Isle of Wight Council (Department of Business and Trade and Protect intervening) [2025] EWCA Civ 379
On 19 and 20 February 2025 The matter concerned an appeal from the Employment Appeal Tribunal, in summary as to whether the lack of protection for job applicants (as opposed to workers or NHS job applicants, who are protected) in whistleblowing claims is compatible with the Convention for the Protection of Human Rights and Fundamental Freedoms. This morning the Court of Appeal handed down judgment in the Council’s favour, dismissing the appeal. The Court of Appeal held that the relevant legislation is compatible with the Convention. In particular:
- The Appellant, as an applicant for work, is not in a materially analogous position to workers or NHS applicants;
- Any difference in treatment (between a job applicant and a worker or NHS job applicant) is objectively justified, as the legislation pursues a legitimate aim and the means adopted to achieve that aim are proportionate;
- Further, this Appellant’s protected disclosure did not relate to her application for employment.
You can read the full judgment here and a summary below:
The facts
The Appellant applied for two posts with the Council and was unsuccessful. She subsequently sent a letter to her Member of Parliament alleging that certain things occurred during her interviews, and complaining about the activities of a charitable trust (one of whose trustees was a member of the interviewing panel). She also made a complaint to the Council, who investigated and found her concerns unsubstantiated. The Council refused the Appellant an appeal of their decision.
The Appellant brought a claim in the Employment Tribunal, alleging that the refusal to allow an appeal of her complaint outcome was a detriment the Council subjected her to because she had made a protected disclosure of information in the public interest (i.e. whistleblowing). She did not claim to have been refused either post applied for because of whistleblowing, because her disclosure occurred after she had been notified her application was unsuccessful. She relied only on the letter to her MP as her disclosure.
The law
Whistleblowing provisions are governed by Part IVA of Employment Rights Act 1996, which broadly protects workers who make “protected disclosures” of certain categories in the public interest from detriment and dismissal by their employer. The term “worker” is given an extended meaning in s. 43K ERA 1996, to include agency workers. There are various provisions in Part IVA ERA 1996 defining to whom, and in what circumstances, a disclosure of information is “qualifying” and “protected”.
In response to Sir Robert Francis QC’s “Freedom to Speak Up” report identifying risks to patient care and treatment from the management of whistleblowing concerns within NHS organisations, a further provision was inserted into the ERA 1996 (s. 49B) protecting applicants for NHS employment from whistleblowing detriment in relation to their application.
The Appellant sought to argue this protection, for workers and NHS applicants but not job applicants more generally, was incompatible with Article 14, read with Article 10, of the Convention.
Article 14 provides a Prohibition on Discrimination: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
Article 14 can only be considered in conjunction with the enjoyment of another substantive right or freedom afforded by the Convention. The relevant right in this case was Article 10, Freedom of Expression. Article 10 provides that this includes the freedom “to receive and impart information and ideas without interference by public authority.”
Gillham v Ministry of Justice (Protect Intervening) [2019] UKSC 44 set out the proper approach to answering the question whether differential treatment is contrary to Article 14, where considering the compatibility of provisions of primary legislation enacted by Parliament with Article 14 – which is to answer four questions. The Court of Appeal in the present case summarised these as:
- Does the subject matter of the complaint fall within the ambit of one of the Convention rights?
- Has the person making the claim been treated less favourably than other people in an analogous, or relevantly similar, situation?
- Is that difference in treatment based on an identifiable characteristic amounting to a status? and
- Is the difference in treatment objectively justifiable (i.e. is it a proportionate means of achieving a legitimate aim)?
Sections 3 and 4 of the Human Rights Act 1998 require courts to read and give effect to legislation in a way compatible with Convention rights, and if not, give them the power to make a declaration of incompatibility.
The case history
The Appellant was not a worker within the meaning of the Employment Rights Act 1996, nor an applicant for a post with an NHS employer. On the ordinary interpretation of the ERA 1996 therefore, she was not entitled to bring any whistleblowing claim in the ET. She contended, however, that the ERA 1996 is incompatible with Article 14, read with Article 10, of the Convention, insofar as it protected workers and NHS applicants, but not job applicants generally.
The ET dismissed the claim at a Preliminary Hearing, determining: the Appellant was not in a materially analogous position to workers or NHS applicants; being a job applicant was not “other status”; and any difference in treatment was objectively justifiable.
The EAT dismissed the appeal on the “analogous position” and “other status” points, but observed it would have remitted the question of objective justification to the ET to receive evidence on proportionality had the remainder of the appeal succeeded. Further, the EAT held the appeal failed for another reason, being that the complaint did not concern a detriment which was in fact connected with the Appellant’s application for employment (but, rather, concerned complaints about the alleged financial activities of a charitable trust unconnected with the Council).
The Court of Appeal judgment
(1) On the question of “materially analogous position”—
The Appellant sought to compare herself to two groups, (i) workers, and (ii) NHS applicants. The CA determined she was not in a materially analogous or relevantly similar position to either. An applicant for work is not in work, not in an employment relationship, and does not have an employer. Workers are protected by legislation in prescribed ways relating to their employment. Similarly, NHS applicants were protected due to an identified need to resolve a specific and urgent problem in the health service relating to patient safety and treatment. That does not apply to applicants for jobs in other sectors.
(2) On the question of “status”—
The CA referred to various caselaw on “status”, which includes innate or personal characteristics but also anything which may distinguish one group of people from another, including a characteristic acquired as a personal choice. The CA therefore regarded job applicants as having a “status” for these purposes – their status as a job applicant is acquired by having chosen to do something (apply for a job). This was immaterial, however, as the appeal failed on other grounds.
(3) On objective justification—
The CA followed the approach set out by the Supreme Court in R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26, given that the case involved consideration of legislation concerning economic and social strategy and policy.
The CA held that Parliament was pursuing the legitimate aim of protecting the public interest by ensuring information about wrongdoing could be disclosed, by providing that those in work who made such disclosures in a responsible way would be protected from detriment by their employer. Further, Parliament pursued the legitimate aim of protecting those applying for work in the NHS who have made a protected disclosure.
The CA held that any difference in treatment resulting from those legislative provisions is objectively justifiable. The ground for difference in treatment is not a “suspect ground”, (i.e. sex or race) which would in principle require weighty reasons for justification. Parliament had already expressly considered matters relevant to the issue of compatibility, and decided the wider public interest justified giving a degree of protection in certain circumstances to workers, but not applicants for work, and to NHS job applicants but not applicants more generally. Further, the legislation is relatively recent, and does not date from an age with different values. In these circumstances the CA gave substantial weight to the judgment of Parliament as the elected decision-maker.
The CA considered, too, that the fact the legislature deals immediately with a particular identified problem (but not another), does not mean it lacks objective justification. It would constrain the legislature in a way not intended by Article 14 to suggest Parliament could not legislate to address the identified problem in the NHS sector, without simultaneously addressing the position of job applicants in other sectors.
The CA therefore held any difference in treatment was objectively justified.
(4) On reading down or incompatibility—
Whilst the CA determined the relevant legislative provisions are compatible with the Convention, it also noted for completeness that it would not be possible to interpret the provisions of Part IVA ERA 1996 as applying to job applicants generally without cutting across a basic feature of the legislation.
(5) On the Appellant’s application for employment—
Finally, the CA considered whether the detriment to which the Appellant alleged to be subjected related to her job application. The detriment itself was the refusal to allow an appeal of the decision against her complaint. Whilst the Appellant’s letter to her MP (which she alleged to be her protected disclosure) did include reference to the Council’s actions at interview (as well as alleged financial irregularities in an unrelated charitable trust), the scope of the claim as she presented it to the ET related only to the charitable trust. That was a complaint made as a member of the public, not in connection with the fact she had at one point earlier applied for a job with the Council. The Appellant’s claim to the ET was therefore not a claim that she had been subjected to detriment in her capacity as a job applicant, or in any way connected with putative employment with the Council.
Fergus McCombie of Pump Court Chambers appeared in the Court of Appeal, leading Louisa Simpson, also of Pump Court Chambers, for the Isle of Wight Council.
