In the recent case of Sullivan v. Isle of Wight Council (Sullivan), the Employment Appeal Tribunal upheld the judgment of an employment tribunal which determined that it did not have jurisdiction to hear a detriment claim raised by an external job applicant based on a whistleblowing disclosure. We examine the details of the case below and explore the varying degrees of legal protection afforded to job applicants in the UK, particularly in the context of whistleblowing and discrimination.
In Sullivan, the claimant was unsuccessful in two applications for financial roles in the Isle of Wight Council. After being told she was unsuccessful for the second role, she raised various concerns with the Council and included these in a letter which she sent to her MP. She was refused an appeal in respect of her concerns under the Council’s Complaints Policy. She brought claims in the employment tribunal, alleging that this refusal was because she had made protected disclosures (or “blew the whistle”) in the letter to her MP.
Whistleblowing protections in the UK are designed to safeguard individuals who disclose information about malpractices or wrongdoing within an organisation and that disclosure is in the public interest. This protection applies to workers and they are able to bring whistleblowing claims in the employment tribunal. The legal definition of a “worker” in these circumstances includes employees, individuals engaged in practical training or obtaining job experience through a training programme, agency staff and some self-employed individuals providing services under a contract. However, this definition generally excludes job applicants who have not yet commenced contractual work for the employer, except for individuals applying for specific positions within the NHS where Parliament acknowledges that patient safety is paramount and supports job applicants being protected from whistleblower retaliation.
Ms Sullivan argued that “worker” should be interpreted by the employment tribunal to include external job applicants. She relied on the European Convention on Human Rights to support this argument, saying that her status was analogous to other protected categories and that it should be treated in a similar way to the protected NHS workers. The tribunal did not agree and rejected her arguments. The Employment Appeal Tribunal agreed and said that Ms Sullivan, as an external applicant, was not in an equivalent situation to internal applicants. The latter are already embedded in an organisation and have whistleblowing protection through their status of being a worker, not through being an applicant. It also said that Ms Sullivan’s status, in applying for a financial role in the Council, was not analogous to an NHS applicant for a role where Parliament has decided that patient safety considerations justified extra protection for job applicants. Consequently, Ms Sullivan was not able to proceed with her whistleblowing claim.
Discrimination protections: a contrast
The situation would have been different if Ms Sullivan had been arguing that the reason for the refusal of an appeal under the Complaints Policy was unlawful discrimination, instead of whistleblowing retaliation. The Equality Act 2010 (2010 Act) expressly covers job applicants such as Ms Sullivan. It also uses a wide definition of “employment”. Its protection covers workers, contractors, individuals who are self-employed but personally contracted to perform the work and, in some cases, former employees. The 2010 Act protects against a wide range of discriminatory behaviours, including direct discrimination, indirect discrimination, harassment and victimisation, across the nine protected characteristics, namely age, gender reassignment, being married or in a civil partnership, being pregnant or on maternity leave, disability, race, religion or belief, sex and/or sexual orientation. The 2010 Act applies to all stages and aspects of employment, including recruitment, employment terms and conditions, training, pay, promotion and dismissal, as well as post-employment.
Key takeaways
The Sullivan judgment makes it clear that, although job applicants are protected from discrimination, they are not typically afforded protection if they raise whistleblowing concerns during the recruitment process. The case highlights the existing gap in protection and potentially opens the door for changes in the legal protections for job applicants (through legislation or through case law widening the interpretation of “worker” for these purposes). As the workplace continues to evolve, particularly in an era where transparency and accountability are increasingly valued, there may be calls to extend whistleblowing protections to cover job applicants. Depending on the particular facts, there is also scope for a job applicant claimant to try to convince a tribunal that the facts of their situation mean that they should come within the definition of “worker” for these purposes. Sullivan stands as a useful reminder and reference point for understanding the current scope of legal protections available to job applicants.
