Whistleblowing protections do not extend to external applicants

In the case of Sullivan v Isle of Wight Council, the Court of Appeal had to consider whether the Employment and Employment Appeal Tribunal were correct in dismissing the claim on the grounds that whistleblowing protections do not apply to external job applicants.

Facts

The claimant had two job interviews with the respondent but was not accepted for either role. The claimant then filed a police report that alleged that during the interviews, she had been verbally harassed by the respondent’s employees. She later complained directly to the respondent prompting an internal investigation and also alleged that an employee was involved in trust-related financial irregularities. The respondent dismissed the complaints and disapplied her right to appeal.

The claimant brought a claim before the employment tribunal arguing that she had suffered a detriment when her right to appeal had been disapplied, and that this was because of the allegations regarding the financial irregularities she had made. She argued that whilst she was not a worker, the protections for whistleblowers should be extended to applicants.

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Employment Tribunal (ET) and Employment Appeal Tribunal (EAT)

The ET had to first establish if it had jurisdiction to hear this case, which hung on whether or not the claimant held the appropriate status, ie worker or employee, to be eligible to bring an ET claim

The claimant was arguing that internal applicants could be used for comparative purposes, and that by denying the right of appeal she had been treated less favourably that an internal applicant would have been. This was however rejected by the ET. In the case of an internal applicant, there is an existing relationship between them and the employer that does not exist in the same way as between the employer and an external applicant, and as such the situations cannot be analogous.

This reasoning led to the conclusion that she was not eligible to bring a whistleblowing claim. The ET held that Parliament had clearly intended to exclude job applicants from having whistleblower protection.

Dismissing the appeal, the EAT confirmed the ET’s decision that the claimant was not treated less favourably to others in an analogous situation due to her status as an external job applicant.

Court of Appeal (COA)

The COA also dismissed the claim. Upholding the decisions in the courts below it, it found that the claimant was not “in a materially analogous position” to workers or applicants who do have protection against a detriment as a result of a protected disclosure.

An interesting point to note in this case is that the whistleblowing charity, Protect, intervened in the case on public policy grounds, submitting that the law is inconsistent with UK employment rights legislation by filing a third-party intervention at the COA to widen whistleblowing protections to all external applicants.

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