In the UK, workers have a right not to be subjected to detriment on the grounds of having made a protected whistleblowing disclosure (s47B Employment Rights Act 1996 (ERA)). The recent case of Sullivan v Isle of Wight Councilconsidered how far this protection should stretch.

Who is protected?

The right to protection from being subjected to any detriment for making a protected disclosure applies to workers. As well as employees, the term ‘worker’ includes all those working under a contract to perform work personally. The definition has also been extended by caselaw to cover LLP members, judges, agency workers, student nurses and certain self-employed doctors in the NHS. However the protection does, it would seem, have its limits.

In the recent case of Sullivan v Isle of Wight Council the Court of Appeal confirmed that the definition of ‘worker’ for whistleblowing purposes does not extend to external job applicants – save for those applying for posts with the NHS for whom specific provision is made. The decision involved consideration of the interplay between the domestic whistleblowing provisions in ERA and the European Convention on Human Rights (ECHR).

Why is ECHR relevant?

If a UK law is found to be in breach of an ECHR right, then the courts must give effect to the legislation ‘so far as it is possible to do so’ to bring it back into line with ECHR (s3 Human Rights Act 1998). If they can’t do this then they have to issue a declaration of incompatibility. This happened fairly recently in the context of industrial action provisions in Mercer v Secretary of State for Business and Trade.

The key consideration in Sullivan was whether, by excluding external job applicants (other than those for NHS roles who are given specific protection), the law protecting whistleblowers from detriment breached Article 14 of the ECHR, read with Article 10 (freedom of expression). Article 14 protects individuals from discrimination on listed grounds and also if they belong to an ‘other status’. Judges had successfully argued in Gilham v Ministry of Justice that they were an ‘other status’ who had been discriminated against by not falling within whistleblowing protection and that the legislation should be interpreted to include them so that their right to freedom of expression was protected.  Ms Sullivan was trying to argue something similar as an external job applicant.

What happened in Sullivan v Isle of Wight Council?

The Claimant had applied unsuccessfully for a job with the Respondent. She had raised matters which were capable of amounting to protected disclosures under whistleblowing legislation. She sought to claim detriment on grounds of whistleblowing. The problem: the Claimant was an external candidate and, on the face of it, was not eligible to claim whistleblowing protection.

The Court of Appeal dismissed the Claimant’s claim. It held that external job applicants did not have whistleblower protection. It followed the four-stage test used in Gilham to establish whether this was a breach of ECHR and found that it was not:

  • Did the facts fall within the ambit of one of the ECHR rights? YES – the right to freedom of expression (Article 10).
  • Was the reason for the lack of whistleblower protection one of the listed grounds in Article 14 of the ECHR or ‘some other status’? YES – the Claimant was treated differently (and not given whistleblower protection) on the ground that she was an external job applicant. The Court regarded that as capable of being treatment on the ground of ‘some other status’. External job applicants could belong to ‘some other status’. Being an external applicant was a characteristic capable of distinguishing one group of persons from other groups and was an acquired status resulting from something that an individual had chosen to do.
  • Had the Claimant been treated less favourably than others in an analogous situation? NO – whilst the Claimant had been treated less favourably (by not being given whistleblowing protection), the Claimant was applying for a job from outside the organisation and was not in a comparable position to either existing workers or external NHS job applicants. Job applicants, unlike workers, aren’t in a working relationship, so the aim of protecting people already in employment who raise concerns about wrongdoing or risks to health and safety didn’t apply. Similarly, NHS job applicants had specific legal protections to support a culture of openness around patient safety. That reasoning didn’t extend to applicants in other fields, so there was insufficient similarity here too.
  • Was the difference in treatment between workers and external NHS applicants (protected) and other external job applicants (not protected) justified as a proportionate means of achieving a legitimate aim? YES – The difference in treatment was held to be justified in any event. The purpose of the legislation was to protect the public interest by ensuring that certain groups could disclose information about wrongdoing or threats to health or safety or the environment. The method of achieving that was to protect workers who made protected disclosures and those applying for work in the NHS. This method was rationally connected to the aim and the means used were no more than necessary to achieve it.

What can we learn from this case?

Sullivan shows that there are limits to who will be afforded protection from whistleblowing detriment. External job applicants (outside of the NHS) are not protected.