In Sullivan v Isle of Wight Council, the Court of Appeal found against the Claimant’s application to extend the whistleblower protections afforded by the Employment Rights Act 1996 (the ERA) to job applicants. The Court of Appeal found that the exclusion of job applicants from such whistleblower protections in this instance was compatible with Article 14, read with Article 10, of the European Convention on Human Rights (the ECHR).
Facts
The Claimant had been unsuccessful in her applications for two separate finance roles with the Isle of White Council (the Council). The Claimant later filed a police crime report alleging that she had been verbally assaulted during one of her interviews with the Council in relation to these roles. The Claimant further alleged that one of her interviewers, a manager of the Council, was also the trustee of a charitable trust which had been taking revenue for many years, despite being registered as a dormant company.
The Claimant then wrote a letter to an MP which, amongst other things, raised these same allegations against the charity that one of her interviewers was a trustee of. The Claimant would later argue that this letter amounted to a “protected disclosure” (the Protected Disclosure).
The Claimant filed a report with the Council’s confidential safeguarding helpline detailing both of these allegations. Following the Council’s investigation into the alleged misconduct, which found no wrongdoing by Council staff, the Claimant’s complaint was not upheld. The Claimant was not offered an opportunity to appeal this decision, despite the Council’s internal procedure usually allowing for an appeal process. The Claimant then issued a claim with the Employment Tribunal (the ET) alleging that she had suffered a detriment by not being offered the chance to appeal the Council’s decision as a result of her Protected Disclosure to the MP.
Procedural Background
At a preliminary hearing, the ET found that they had no jurisdiction to hear the claim as the Claimant was not able to bring a whistleblowing claim as she did not fall within the status necessary to bring such a claim under the ERA.
While the Claimant accepted that she was neither a worker nor an applicant for a position with an NHS body, (both of whom are afforded whistleblowing protections by the ERA), she argued that the exclusion of job applicants from such protections was incompatible with Article 14, read with Article 10, of the ECHR (which together protect freedom of expression and ensure that that convention rights are applied without discrimination). A recent case established that, where Article 14 is engaged, the ET must ask four questions:
- Do the facts fall within the ambit of one of the Convention rights?
- Has the applicant been treated less favourably than others in an analogous situation?
- Is the reason for that less favourable treatment one of the listed grounds or some “other status?
- Is that difference without reasonable justification?
Even though it was accepted that the facts of the case might fall within the scope of one of the convention rights, the ET did not consider the Claimant to be in an analogous position with either of the groups identified as having whistleblower protection. The ET was also not satisfied that a “job applicant” would constitute a person of “other status”. In any event, it was held that that any difference in treatment suffered by the Claimant would be objectively justified.
On appeal, the Employment Appeal Tribunal (the EAT) agreed with the ET both that the Claimant was not in a materially analogous position to either of the identified groups with whistleblower protections, and also that job applicants would not be considered some “other status” for the purposes of Article 14 of the ECHR.
However, the EAT would otherwise have remitted to the ET the question of whether the statutory whistleblowing provisions were objectively justifiable so that evidence of proportionality could be heard.
The EAT held that the appeal would ultimately have failed as the detriment that the Claimant was alleged to have suffered was unconnected to her status as a job applicant and the allegations contained within the alleged Protected Disclosure were not connected with the Council.
Court of Appeal decision
The Court of Appeal (the CoA) dismissed the Claimant’s further appeal. The CoA upheld the lower courts’ findings that the Claimant’s position as a job applicant was not analogous to either of the identified groups – the aims of the legislation underpinning the protections afforded to each of these groups were not relevant to, and materially different from, the Claimant’s position as a job applicant outside of the NHS.
However, it was held that if the Claimant were to suffer less favourable treatment as a result of her position as a job applicant, this would constitute “other status” for the purposes of Article 14. The acquired characteristic of being a job applicant was determined to be sufficient to distinguish one group of people from another. Nevertheless, the CoA found that any difference in treatment suffered by the Claimant as a job applicant would have been objectively justified. In coming to this conclusion, the CoA found that the UK’s current whistleblowing protections satisfied the proportionality test, taking into account the purpose of whistleblowing legislation and that the UK government had recently, in 1998 and 2015, decided not to extend these protections to job seekers in general.
Although not necessary to consider the issue, the CoA also agreed with the EAT that any detriment suffered by the Claimant was unrelated to her status as a job applicant. Rather, it was found to have been suffered as a result of her inability to pursue a complaint made as a member of the public in relation to a protected disclosure that concerned allegations of financial irregularities at a charitable trust.
What does this mean for employers?
For the time being, the CoA’s decision confirms that whistleblower protections will not be extended to job applicants. However, it is important for employers to be aware that this position is contrary to the extension of rights under the EU Whistleblowing Directive. In addition, the UK Government has indicated that this may be something to be considered as part of their review of whistleblowing laws.
Many thanks to Imogen Loy for her help in preparing this post.