External job applicants: Court of Appeal confirm they don't have whistleblowing protections

Workers are protected from being subjected to any detriment on the ground that they have made a protected disclosure. But who is a ‘worker’? The Court of Appeal in Sullivan v Isle of Wight Council had to consider if that definition included external job applicants. 

What does the law say about who is a ‘worker’? 

In this context, a ‘worker’ is not just someone working under a contract of employment or a contract to do any work or perform services personally. There is an extended definition which includes others such as agency workers. 

Following a review, in response to concerns about the way that NHS organisations deal with issues raised by staff about substandard and sometimes unsafe patient care, job applicants in the NHS are also classed as ‘workers’ when it comes to protection from detriment because they have made a protected disclosure.  

But other job applicants are not expressed covered. 

Facts

Miss Sullivan applied for two posts with the Isle of Wight Council ('the Council') but was unsuccessful. She wrote to the Council's Chief Executive alleging that at both interviews she was told that she was “mentally insane” and alleged that one of the interviewing panel had acted fraudulently in his role as a trustee of a charitable trust. Miss Sullivan also wrote to her MP with the same concerns.

The council investigated but rejected Miss Sullivan's allegations. They did not give her the right to appeal the decision. 

Miss Sullivan brought a tribunal claim alleging that the refusal to allow her to appeal was a detriment because she had made a protected disclosure. 

As she was not a worker, or applying to the NHS, she was not entitled to whistleblowing protection. She argued that the legislation (principally the Employment Rights Act 1996) was incompatible with Article 14, when read with Article 10, of the Convention for the Protection of Human Rights and Fundamental Freedoms ('the Convention') because it protected workers and applicants for NHS posts but not job applicants generally. 

Article 14 of the Convention relates to the prohibition on discrimination and states that ‘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 10 of the Convention provides that everyone has the right to freedom of expression and that this right includes freedom ‘to receive and impart information and ideas without interference by public authority’. 

Employment tribunal

The tribunal dismissed her claim. It held that she was not in a materially analogous or equivalent position to workers or applicants for NHS posts. It also held that a job applicant did not fall within the reference to ‘other status’ under Article 14. Finally, it held that any difference in treatment was objectively justified. 

Employment Appeal Tribunal 

The EAT agreed that as a job applicant, Miss Sullivan was not in an analogous position to workers or applicants for NHS posts. It also agreed that job applicants were not covered by Article 14. 

On the wider principle, the EAT also stated that the complaint Miss Sullivan presented did not concern any detriment imposed because of anything connected with her application for employment. Instead, it concerned complaints about alleged financial activities in connection with a charitable trust which was not connected with the Council. 

Court of Appeal

Miss Sullivan appealed, and the Court of Appeal had to consider the following questions:

Is an external job applicant in a materially analogous or relevantly similar position to internal job applicants or applicants for job with NHS employers? 

The Court of Appeal found that it was not. 

It stated the position of a job applicant is materially different from someone in work.  

An exception had been created for NHS staff to deal with patient safety and treatment. The NHS is a national service, and the aim was to ensure that people wouldn't be deterred from making protected disclosures if they wanted to move from one NHS body to another. The Court of Appeal said this was an important principle that didn't apply to applicants in other sectors. 

Does an external job applicant have some “other status” within the meaning of Article 14?

The Court of Appeal stated that being a job applicant could amount to ‘other status’ for the purpose of Article 14 because its a characteristic capable of distinguishing one group of persons from other groups and relates to something that an individual has chosen to do; apply for a job. 

Is the difference in treatment is objectively justified?

That being the case, the Court of Appeal then had to consider if the difference in treatment was objectively justified. It made the point that the provisions protecting workers were introduced to protect the public interest by ensuring that information about wrongdoing, or threats to health and safety or the environment, could be disclosed. It did that by providing that those in work who disclosed such information in a responsible way would be protected from being subjected to detriments by their employers. 

In considering whether the legislation is proportionate, the Court of Appeal explained that it was implicit in the wording of the legislation that parliament considered that the wider public interest justified giving a degree of protection, in certain circumstances, to workers but not to job applicants. And it's implicit in the legislation empowering the making of regulations to protect those applying to work in the NHS, that parliament considered that there was a need to protect those job applicants but not job applicants more generally. 

Therefore, while the Court of Appeal held that external job applicants could have some ‘other status’, the difference in treatment that arises for other applicants is objectively justifiable.

Did the detriment concern Miss Sullivan's application for employment? 

While the Court of Appeal stated that it is not strictly necessary to deal with this point because the appeal was dismissed on other grounds, it nevertheless considered it.

Miss Sullivan's claim was that she was not allowed to appeal the Council's decision because she had raised concerns about accounting and taxation irregularities. It was a complaint made as a member of the public, not in connection with the fact that she had applied for a job. 

Consequently, the EAT were correct to conclude that the claim didn't involve a detriment to which the whistleblowing legislation applied. 

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