In this case, the Employment Appeal Tribunal (EAT) held that, in the main, external job applicants are not entitled to bring claims in respect of whistleblowing when they have suffered a detriment because of making a protected disclosure.
Facts / background
Miss Sullivan applied for two jobs with the Isle of Wight Council and had two job interviews. She was unsuccessful in securing either role. She subsequently made broad-ranging allegations against the interviewers, one of which concerned alleged financial irregularities. Miss Sullivan complained to the council, the police and her MP. After following its complaints procedure, the council concluded that there was no evidence of wrongdoing and dismissed the complaints. Given the extent of the investigation carried out, and the impact on the staff involved, Miss Sullivan was not given the right to appeal the findings. Miss Sullivan issued a tribunal claim against the council for whistleblowing detriment. She claimed that the complaint about financial irregularity was a protected disclosure and the refusal to hear her appeal was a detriment.
The employment tribunal held that it had no jurisdiction to hear the claimant’s case. In order to bring a whistleblowing claim the claimant must be classed as a "worker" unless they are a NHS job applicant (given the particular patient safety concern). The claimant accepted that she was not a “worker”, however, she argued that the European Convention of Human Rights’ prohibition on discrimination because of ‘status’ could be used to extend whistleblowing protection to external job applicants in the same way as the Supreme Court had used it in relation to a District Judge in the case of Gilham v Ministry of Justice. In that case the Supreme Court had found that judicial office holders could bring a whistleblowing detriment claim on the basis that their status is analogous to that of workers.
The claimant appealed to the Employment Appeal Tribunal (EAT) but the EAT upheld the tribunal’s decision. The EAT found that as an external candidate, the claimant was not analogous to an internal candidate or to an external NHS applicant, who were specifically provided for under legislation.
What does this mean for employers?
This is useful clarification for employers that only "workers" are entitled to bring claims in respect of whistleblowing when they have suffered a detriment because of making a protected disclosure. External job applicants are not workers and therefore do not have the same protection, unless they fall within the provisions for applicants for positions with certain specified NHS employers, or judicial office holders. The EAT concluded that parliament had clearly intended to exclude job applicants from whistleblower protection and any amendment would be for parliament to make.
