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Whistleblowing - how far does the protection extend?

Posted: 20/02/2024

Increasingly, employers are facing claims for whistleblowing. In the recent case of Sullivan v Isle of Wight Council, the Employment Appeal Tribunal (EAT) considered whether or not whistleblowing protection extends to job applicants.

Whistleblowing legislation offers valuable protection for those who identify wrongdoing and gives them redress against any retaliation. In a work environment subject to increasing compliance, to regulatory and legislative obligations, and to staff who are able readily to access information in relation to them, it is inevitable that individuals will want protection if they choose to highlight wrongdoing. 

Many employers actively encourage employees to raise concerns through ‘speak up’ or similar initiatives, and the majority of employers have a whistleblowing policy in place. These allow an employer to address issues early and limit any potential damage, while at the same time highlighting the channels to be used and the protections for those who raise concerns. It is therefore very important that organisations are aware of how far the protection for whistleblowers goes. 

In the case of Gilham v Ministry of Justice, the Supreme Court held that, even though judicial office holders were not workers under the Employment Rights Act 1996, they were entitled to whistleblower protection. The case argued that to deny this protection to judicial office holders would breach their rights under Article 14 of the European Convention of Human Rights (the right not to be discriminated against in the enjoyment of rights and freedoms set out in the convention – in this instance, the claimant argued that she was being deprived of her freedom of expression due to her occupational status). In Sullivan, the claimant sought to extend this argument to cover job applicants. 

Miss Sullivan was interviewed for two roles at the Isle of Wight Council. She was not successful with either application and subsequently made several broad-ranging allegations against the interviewers, including alleged financial irregularities. These allegations were made to the council and other bodies. The council dismissed Miss Sullivan’s allegations having followed its complaints process. 

As the investigation had been extensive and distressing for staff, the council did not offer Miss Sullivan the right to appeal on the basis that it wanted to protect their wellbeing. Miss Sullivan brought a claim under the whistleblowing legislation, arguing that the refusal to hear her appeal amounted to a detriment as a result of her complaint about financial irregularity.

The council argued that, as a job applicant, Miss Sullivan was not a worker for the purposes of the Employment Rights Act 1996, and therefore did not qualify for whistleblowing protection. Miss Sullivan argued that the relevant provisions should be read as including job applicants as a failure to do so would result in a breach of her convention rights due to her occupational status. In addition, she sought to compare herself to NHS job applicants who benefit from whistleblowing protection as a result of a specific statutory provision. 

The Employment Tribunal dismissed her claim on the basis that she was not entitled to whistleblowing protection, given that there was no contravention of convention rights as a result of her occupational status, as, unlike judicial office holders, she was not engaged in any occupation. 

Miss Sullivan’s appeal was dismissed by the EAT. The EAT held that an external job applicant was not analogous to an internal applicant (who would benefit from whistleblowing protection due to their worker status), nor to external applicants in the NHS (who benefit from whistleblowing protection to ensure patient safety). The EAT did not consider that the less favourable treatment arose from her status as a job applicant, nor did it accept that a job applicant was analogous to a judicial office holder when considering occupational status, thereby distinguishing the Supreme Court’s decision in Gilham. 

The EAT considered that the fact that the legislation did not offer whistleblowing protection to job applicants was a clear intention on the part of Parliament; any extension would therefore need to be an amendment for Parliament to take. 

This is a welcome decision for employers as it limits the ability for disgruntled unsuccessful job applicants to argue that they have suffered a detriment for having blown the whistle.

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Penningtons Manches Cooper LLP is a limited liability partnership registered in England and Wales with registered number OC311575 and is authorised and regulated by the Solicitors Regulation Authority under number 419867.

Penningtons Manches Cooper LLP