EAT Upholds Exclusion of Whistleblowing Protections for External Job Applicants in Sullivan v Isle of Wight Council Case

Citation: [2024] EAT 3
Judgment on

Introduction

In the Employment Appeal Tribunal (EAT) case of Miss P Sullivan v Isle of Wight Council [2024] EAT 3, the tribunal examined several significant legal questions pertaining to the rights of job applicants in the context of whistleblowing protections under the Employment Rights Act 1996 (ERA), and their alignment with the European Convention on Human Rights (ECHR). The judgment offers a comprehensive analysis of the applicable legal principles and their interaction with the specific facts of the case.

Key Facts

Miss P Sullivan (the Appellant) lodged claims under the ERA, arguing that she endured detriments owing to protected public interest disclosures she made as a job applicant. Initially, the employment tribunal found lacking jurisdiction to entertain Sullivan’s whistleblowing complaints because she was a job applicant, not an employee or worker, and as such wasn’t covered under the ERA sections 47B, 48, and 49B.

The Appellant claimed the tribunal’s findings violated her rights under Articles 10 (freedom of expression) and 14 (prohibition of discrimination) of the ECHR. The EAT, on appeal, evaluated whether the tribunal was correct in its interpretation of these rights, and if the treatment Sullivan received as an external applicant constituted ‘some other status’ under Article 14.

The EAT addressed a series of legal principles, primarily focused on:

  1. Status and Protection of Whistleblowers: The EAT examined whether the ERA provided protection to job applicants as it does for employees and workers. This involved interpreting whether the legislation could be read in a way compatible with the ECHR—specifically, whether whistleblowing job applicants could claim protection under the ERA’s provisions (notably sections 47B and 49B).

  2. Analogous Circumstances: The tribunal was tasked with determining whether Sullivan was in an analogous situation to other protected individuals under the ERA, specifically internal applicants and NHS job applicants.

  3. ‘Other Status’ under Article 14 ECHR: The question arose as to whether ‘external job applicant’ could be considered an ‘other status’ and thus engaged Article 14 protection against discrimination for Sullivan.

  4. Justification and Proportionality: Finally, the EAT considered whether the exclusion of job applicants from the ERA’s protection was a proportionate means of achieving a legitimate aim.

Throughout, the EAT referred to established cases such as Gilham v Ministry of Justice [2019] ICR 1655, Ghaidan v Godin-Mendoza [2004] 2 AC 557, HL, and Stott [2020] AC 51, drawing from their dicta to frame the analysis.

Outcomes

The EAT upheld the original tribunal’s decision, concurring that:

  • Sullivan, as an external job applicant, was not in an analogous situation to internal job applicants or NHS job applicants protected under the NHS Regulations.
  • The concept of an ‘external job applicant’ did not qualify as ‘some other status’ under Article 14 ECHR.
  • Even if Sullivan’s claim fell within the ambit of Article 10 ECHR, there was no unreasonable justification for the difference in treatment as such distinction was based on the legislative choice under the ERA.

The tribunal had erred in addressing the issue of proportionality, but this had no impact on the case’s outcome, as the answers to the other questions did not favor the Appellant.

Conclusion

The EAT ruling in Miss P Sullivan v Isle of Wight Council [2024] EAT 3 establishes that the existing legislative framework under the ERA does not extend whistleblowing protections to external job applicants. It upholds the principle that legislative interpretation must align with the innate thrust of the statute, and fundamental changes to the scope of legislation require Parliamentary deliberation and enactment.

This judgment clarifies that the extension of statutory protections requires evidence-based legislative decision-making and must be consistent with Parliament’s intent. The case solidifies the boundaries of who is entitled to statutory protections, specifically in the whistleblowing context, reaffirming the distinction between those within and outside a working relationship with an employer.