The Employment Appeal Tribunal has ruled that an external job applicant could not bring a whistleblowing claim under the provisions of the Employment Rights Act 1996.
Miss Sullivan had two job interviews at the Isle of Wight Council (the council) and was unsuccessful. She then raised allegations against the interviewers, including alleged financial irregularities. The council dismissed the complaints after following its complaints procedure. Miss Sullivan brought a whistleblowing claim on the basis that the complaint about financial irregularity was a protected disclosure and the refusal by the council to hear her appeal was a detriment.
As a job applicant, Miss Sullivan was not a worker within the meaning of section 230 or the extended definition in section 43K of the Employment Rights Act 1996. She argued that sections 47B(1) and 48 should be interpreted to include job applicants by reason of Articles 10 and 14 of the ECHR and the judgment in Gilham. She compared herself to NHS job applicants (who are protected under section 49B) and workers generally.
In Gilham v Ministry of Justice [2019] UKSC 44, the Supreme Court held that even though judicial office holders are not workers for the purposes of the Employment Rights Act 1996, they are entitled to whistleblower protection. To deny them rights because of their occupational status would breach their rights under Article 14 of the European Convention on Human Rights (ECHR).
The tribunal applied the principles in Gilham and held as a preliminary issue that Miss Sullivan was not eligible to bring a whistleblowing claim.
The EAT dismissed her appeal. It held that an external job applicant is not in a situation equivalent to an internal applicant (whose right stems from their existing worker status), nor external applicants in the NHS (who are included to protect those who raise issues of patient safety). Her status as a job applicant was not the reason for the alleged less favourable treatment and the status of job applicant was not equivalent to the occupational classification of judicial office holder. Parliament’s clear intention was to exclude job applicants from whistleblower protection and any amendment would be for Parliament to make.
Case: Sullivan v Isle of Wight Council [2024] EAT 3 (22 January 2024)
James Williams
