Court of Appeal rejects claim by applicant for council jobs for whistleblower protection

The Court of Appeal has rejected an appeal by a claimant who argued that she had been subjected to a “detriment” because she made a protected disclosure of information after unsuccessfully applying for two posts at a local authority.

The appeal concerned provisions of the Employment Rights Act 1996 ("ERA"), which provide that workers have the right not to be subjected to any detriment if they make a protected disclosure - that is a disclosure of certain categories of information to their employer or other specified persons.

In Sullivan v Isle of Wight Council [2025] EWCA Civ 379 (03 April 2025), Lord Justice Underhill concluded that the appellant, as an applicant for a job, was not in a “materially analogous position” to workers, or applicants for work or posts with NHS employers – who are entitled to protection in relation to any protected disclosure on the ordinary interpretation of ERA.

Underhill LJ further concluded that the relevant legislation is compatible with Article 14, read with Article 10, of the Convention for the Protection of Human Rights and Fundamental Freedoms.

The appellant had applied for posts with the respondent, the Isle of Wight Council. However, she was unsuccessful in her applications.

The appellant subsequently sent a letter to her MP detailing certain things that she said had occurred at the 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, which was investigated and found to be unsubstantiated.

Following this, the council failed to arrange for the woman to be given an opportunity for the matter to be referred to another officer for a further review, in accordance with its complaints policy.

The appellant complained to an employment tribunal that she had been subjected to a “detriment” – the refusal to allow a further review of her complaint - because she had made a protected disclosure of information.

Underhill LJ noted that the appellant accepted that she had not been refused a post because of any disclosure of information, as the disclosure occurred after the interviews had been conducted and after she had been told that she had been unsuccessful in her applications.

He added: “The appellant was not a worker within the meaning of ERA. She was not an applicant for a post with an NHS employer. On the ordinary interpretation of ERA, therefore, she was not entitled to protection in relation to any protected disclosure she made.

“She contended, however, that the legislation was incompatible with Article 14, read with Article 10, of the Convention, in so far as it protected workers and applicants for NHS posts but not job applicants generally.”

The employment tribunal dismissed her claim. It held that the appellant was not in a “materially analogous position” to workers or applicants for NHS posts, and that any difference in treatment was “objectively justifiable”.

On appeal, the Employment Appeal Tribunal (EAT) dismissed the appeal, holding again that the appellant was not in an equivalent position to workers or applicants for NHS posts, and that being an applicant for a job was not a status for the purposes of Article 14 of the Convention.

The EAT observed, however, that if it had not dismissed the appeal for those reasons, it would have remitted the question of whether the statutory provisions were objectively justifiable to the employment tribunal, to enable it to receive evidence on the question of proportionality.

The appellant appealed the EAT’s decision in the Court of Appeal, where the following issues were considered:

1. is the appellant in a materially analogous position to (a) workers or (b) applicants for posts with NHS employers?;
2. does being a job applicant amount to a status for the purpose of Article 14 of the Convention?;
3. is the difference in treatment arising out of the relevant statutory provisions objectively justifiable?; and
4. was the disclosure related to the appellant's application for employment?

Underhill LJ outlined the background to the extension of protection to applicants for NHS posts.

He noted that in 2015, a review was established in response to concerns about the way that NHS organisations dealt with issues raised by staff about substandard and sometimes unsafe patient care.

The review was conducted by Sir Robert Francis QC and entitled "Freedom to Speak Up".

Underhill LJ said: “The executive summary identified the principles that should be followed to bring about change. Principles 1 and 2 were concerned with the fostering of a culture of safety and a culture where those who raised honest concerns about safety should be encouraged to speak up. Principle 20 concerned the provision of enhanced legal protection.

“Against that background, the Small Business, Enterprise and Employment Act 2015 ("the 2015 Act") inserted a provision into the ERA dealing with protection for applicants for employment in the health service. That provided a power for the Secretary of State to make regulations prohibiting an NHS employer from discriminating against an applicant because the applicant had made a protected disclosure.”

During the passage through Parliament of the Bill which became the 2015 Act, an amendment was proposed to section 43K which gives an extended meaning to "worker".

The amendment proposed inserting after the existing section 43K(1)(d) the following:

"(e) is or has been a job applicant".

That amendment, had it been adopted, would have extended the scope of the protection for those who made protected disclosures to all applicants for jobs.

The proposed amendment was the subject of debate. It was subject to a vote and 231 voted against adopting the amendment and 174 voted in favour. Therefore, the amendment was not made.

Turning to the appeal, Underhill LJ noted that the remedy sought by the appellant was for the court to interpret section 43K of ERA so that it extends to applicants for jobs.

She submitted that the EAT “erred in indicating that that would not have been appropriate”.

Alternatively, the appellant sought a declaration that section 43K of ERA is “incompatible” with Article 14, read with Article 10, of the Convention.

Counsel for the appellant submitted that as a job applicant, the appellant was in the “same position” as an applicant for a job with an NHS employer.

It was submitted that NHS job applicants would not necessarily be seeking a job which was concerned with patient safety; they may be seeking financial roles (as the appellant had been with the respondent).

Further, persons who had never worked for an NHS employer but applied for a job were protected. Such persons were in a “materially analogous position” to applicants applying for jobs.

It was submitted for the appellant that being a job applicant was some other status within the meaning of Article 14 of the Convention. 'Status' had been given a wide interpretation. It included characteristics arising from what a person has done or has had done to them.

Counsel for the local authority argued that the appellant was not in a materially analogous position to those protected by the legislation. The appellant was an applicant for a job and had no workplace relationship with the council. In the light of the observations of Baroness Hale in paragraph 32 of Gilham, the approach to status in this context was to have regard to whether a person had an occupational classification. It did not extend to something as generic as being a job applicant.

It was contended that the appellant was in reality a member of the public making a complaint and that was “insufficient to amount to a status for the purpose of Article 14 of the Convention”.

Considering the submissions of the parties, Underhill LJ said: “The first issue is whether the appellant is in a materially analogous or relevantly similar position with the two groups with which she seeks to compare herself namely: (1) workers as defined by the relevant provisions of the ERA and (2) applicants for work in the NHS.

“Dealing first with workers, the legislation aims to protect the public by ensuring that those in work who make disclosures of information about wrongdoing, or dangers to health and safety or the environment, to their employers (or, in defined circumstances, to others) are protected from dismissal or being subjected to any detriment in their employment as a result of having disclosed information in the prescribed way. The legislation is aimed at disclosures by those in work. Applicants for jobs are not in a relevantly similar or analogous position. They are not in work and are not in an employment relationship with the relevant employer. The position of someone seeking work is materially different from someone in work.”

He added: “Similarly the appellant is not in a materially analogous position to applicants for jobs with NHS employers. The amendments to ERA were aimed at dealing with what was seen as a specific and urgent problem, namely the need to ensure a culture where staff in the health service would be able to make protected disclosures about matters concerning patient safety and treatment. The aim was to ensure that persons would not be deterred from making protected disclosures because they may wish to move from one NHS body to another.

“It is true that the legislation, as a matter of interpretation, confers protection on persons who have never worked for an NHS body but who have made a protected disclosure and then applied for a post with an NHS employer. The thrust of the legislation, however, is to protect patient safety and care by ensuring that those in the health service who have access to information relevant to those issues, and who disclose information about such matters, are not then prevented from accessing other posts in the health service. Applicants for jobs in areas other than the health service are not in a materially or relevantly analogous position.”

Underhill LJ went on to consider whether the difference in treatment arising out of the provisions of the ERA dealing with protected disclosures is “objectively justified”.

He said: “It has been shown that there is a reasonable relationship of proportionality between the aims of the legislation and the means adopted to achieve those aims. That, in itself, is sufficient to lead to the conclusion that, applying the approach set out in SC to this case, any difference in treatment has been shown to be objectively justified.”

Dismissing the appeal, Lord Justice Underhill concluded: “The relevant legislation is compatible with Article 14, read with Article 10, of the Convention. The appellant, as an applicant for a job, is not in a materially analogous position to workers, or applicants for work or posts with NHS employers. The legislation pursues a legitimate aim and the means adopted to achieve that aim are appropriate and not disproportionate. Any difference in treatment which results from the provisions of the legislation is objectively justified.”

Lord Justice Holgate and Lord Justice Underhill agreed.

Lord Justice Underhill said: “As is so often the case in claims based on article 14 of the Convention, the issues of analogous position, status and objective justification overlap. In this case I find it most helpful to focus on objective justification. For the reasons given by Lewis LJ at paras. 74-101 of his judgment I believe that the differences of treatment between (to put it broadly) non-NHS applicants for employment on the one hand and workers and NHS applicants on the other do represent a proportionate means of achieving a legitimate end, even if they are to be treated as being in an analogous position. I particularly agree with Lewis LJ's emphasis on the need for the courts to respect the choices made by Parliament in the context of primary legislation of this kind.”

Lottie Winson