443: Job applicant cannot bring whistleblowing claim against prospective employer

Under the Employment Rights Act 1996, whistleblowing claims can only be brought by claimants who have worker status. In the 2019 case of Gilham v Ministry of Justice, a District Judge argued that this restriction breached Article 14 of the European Convention of Human Rights (ECHR) which prohibits discrimination on grounds of occupational status. The Supreme Court agreed, ruling that Article 14 could be used to extend whistleblowing protection to judicial office holders on the basis that their status was analogous to that of workers.

In Sullivan v Isle of Wight Council, the Employment Appeal Tribunal has recently considered whether this same argument could apply to allow an external job applicant to bring a whistleblowing detriment claim against a prospective employer.

Miss Sullivan applied for two roles with the Isle of Wight Council but was unsuccessful in both job interviews. She subsequently made various allegations against the interview panel relating to the recruitment process and their wider professional lives, including an allegation of financial irregularities. The Council investigated the complaints and concluded that there was no evidence of wrongdoing, and therefore no disciplinary case to answer. Given the extent of the investigation and the impact on the staff involved, the Council did not allow Miss Sullivan the right to appeal. She issued a claim in the Employment Tribunal alleging that her complaint about financial irregularities was a protected disclosure, and that refusing to hear her appeal amounted to a detriment.

The Employment Tribunal held that it had no jurisdiction to hear the claim because Miss Sullivan was not a worker. This was not disputed, but Miss Sullivan argued that Article 14 of the ECHR applied to extend whistleblowing protection to external job applicants in the same way as the Supreme Court had extended protection to judicial office holders in Gilham v Ministry of Justice. Rejecting this argument, the Tribunal held that as an external job candidate, Miss Sullivan’s status was not analogous to that of an existing employee or worker who is integrated into the workplace. She was also not in an analogous situation with candidates applying for roles with NHS employers who have specific statutory whistleblowing protection in order to protect patient safety.

The EAT has now upheld this decision, agreeing with the Tribunal’s reasoning. The EAT noted that Parliament had intended to exclude job applicants from the scope of whistleblowing protection, and that any amendment would be for Parliament to make.

This case confirms that the status of external job applicants is not comparable to internal candidates, NHS job applicants, or judicial office holders as in Gilham v Ministry of Justice. They are therefore unable to bring whistleblowing detriment claims. Any further extension of whistleblowing protection is likely to be a matter for Parliament rather than Tribunals, however it is worth noting that job applicants are eligible to bring discrimination claims.