Why the case matters
Workers and employees are protected on grounds of whistleblowing but, unlike with discrimination law, whistleblower protection does not extend to applicants. However, an exception is made for job applicants within the NHS (for public policy reasons this was seen as necessary).
Because whistleblowing legislation gives workers the right to speak out about malpractice, it has been held in various cases to overlap with and engage article 10 (freedom of speech) of the European Convention of Human Rights (ECHR). In a number of whistleblowing cases, claimants who are neither workers nor employees have successfully leveraged their article 14 right (right to enjoy Convention rights without discrimination on listed grounds, including 'other status') to obtain whistleblower protection despite not being an employee or worker. This argument was successfully used to extend protection to a judge who was an office-holder in Gilham v Ministry of Justice (2009) (Supreme Court), on the basis that it was not proportionate to interfere with his article 14 right. It was also used to extend protection to a trustee in McLennan v British Psychological Society (2014).
Facts
Ms Sullivan unsuccessfully applied for a job with Isle of Wight Council. She raised an unsuccessful grievance about the way in which her interview had been conducted and, amongst other things, made an allegation that a member of the panel was engaged in financial irregularity in respect of a charitable body he sat on outside of work. She was not afforded a right of appeal by the Council (as members of the public usually are in respect of grievances).
Ms Sullivan brought a claim in an Employment Tribunal, alleging that she had suffered detriment as a result of being a whistleblower. She made an unsuccessful claim to the Employment Tribunal, then the Employment Appeal Tribunal, both of which held she was not protected as an applicant.
The decision
The Court of Appeal held that Ms Sullivan was not protected. While an applicant was capable of falling within 'other status' for the purposes of article 14 arguments, Ms Sullivan was not treated less favourably to someone with analogous status. She was not analogous to an NHS applicant, in respect of whom a special exception had been made.
If there had been discrimination on grounds of status (a distinction made as between who can blow the whistle), it would have been objectively justified. Weight was given to the fact that Parliament had specifically considered and ruled out affording protection to general applicants. Further, a policy decision had been made to protect NHS applicants specifically.
In any case, the Employment Tribunal noted that the detriment alleged to have been suffered did not occur in a workplace context due to Ms Sullivan having raised the grievance as a member of the public rather than under a workplace policy.
Comment
While it is clear from this decision that applicants are not protected under the whistleblowing provisions of the Employment Rights Act 1996 (ERA), it is still possible for article 14 arguments to be made in other situations, on the basis that other types of status are analogous to that of worker or employee. For example, the recent decision of McLennan saw a trustee establish this protection (see above).
Employers should be alive to the possibility that individuals who are neither employees nor workers are in fact protected. In other words, claims under the whistleblowing legislation may arrive in unexpected ways due to the potential for 'other status' cases to be brought in future.
