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Can an external job applicant bring a whistleblowing claim?
The Employment Appeal Tribunal (“EAT”) recently considered, in the case of Sullivan v Isle of Wight Council, whether an external job applicant was protected in respect of making whistleblowing disclosures following a job interview.
Facts
Miss Sullivan applied for two jobs at the Isle of Wight Council (“the Council”). She was unsuccessful in both. She subsequently made a range of allegations to the Council and others, against those that interviewed her, including verbal harassment and that one of the interviewers was involved in financial irregularities related to a charitable trust. The Council investigated these concerns via its complaints procedure and dismissed them. It did not offer her a right of appeal in respect of this decision.
Miss Sullivan then brought Employment Tribunal proceedings on the basis that she had made a protected disclosure (commonly referred to as “whistleblowing”) and then had suffered a detriment in that an appeal was not offered to her complaints. The Council submitted that the Employment Tribunal (“ET”) did not have jurisdiction to hear the claim. The ET agreed and Miss Sullivan appealed.
The law
Workers are protected from any detriment on the ground that they have made a protected disclosure (section 47B(1), Employment Rights Act 1996 (“ERA 1996”)). The definition of “worker” does not include job applicants in a generic sense. Miss Sullivan argued that following the decision in Gilham v Ministry of Justice (which extended whistleblowing protection to judges), that whistleblower protection should be extended to job applicants by reason of her right to freedom of expression and the prohibition from discrimination under the European Convention on Human Rights (“ECHR”). She compared herself to NHS job applicants and internal job applicants who do have whistleblower protection under ERA 1996.
Held
The EAT rejected Miss Sullivan’s appeal. It held that her status as an external job applicant was not analogous to an internal applicant, as the latter derives their protection from being an existing jobholder i.e. a “worker”. In respect of the comparison to NHS job applicants, this was specific protection given by Parliament due to concerns with patient safety. In respect of Gilham, there was a distinction to be made between extending protection due to a personal characteristic of the applicant (e.g. a judicial office holder) and extending protection merely because an individual makes a job application. The latter was not sufficient for extended protection under the ECHR.
In any event, the EAT concluded that the claimed detriment did not occur in her capacity as an external job applicant as both the alleged disclosure and detriment occurred in the context of a complaints procedure open to anyone to invoke.
Comment
This case has clarified the limited scope of whistleblower protection for job applicants and identified that any whistleblower protection for job applicants generally will likely require an Act of Parliament. While the Council was successful in defending the claim, the nature of the allegations made following the interview process highlights that conducting interviews with more than one person present and keeping notes of interviews can help insulate an employer from claims arising from the interview process. Employers should be mindful that whilst claims relating to whistleblowing detriment are not generally possible, discrimination claims can be brought by job applicants and these measures ought to help mitigate risks in respect of those types of claims.