The Employment Appeal Tribunal (EAT) has held in Sullivan v Isle of Wight Council that a job applicant was not eligible to bring a whistleblowing claim.
The claimant applied, unsuccessfully, for work at the council. She then made several allegations against the interviewers, one of which concerned financial irregularities. She complained to the council and other bodies. The council followed its complaints procedure and, in dismissing her complaints "disapplied" her right to appeal as the investigation had been extensive. The claimant subsequently brought a whistleblowing claim on the basis that the complaint about financial irregularity was a protected disclosure and the refusal to hear her appeal was a detriment.
The tribunal held as a preliminary issue that the claimant was not eligible to bring a whistleblowing claim. The EAT agreed, holding that the claimant, as a job applicant, did not fall within the extended definition of "worker" in section 43K of the Employment Rights Act 1996 (ERA 1996) and so had no right to protection.
In coming to this conclusion the EAT took the Supreme Court's decision in Gilham v Ministry of Justice into account. In Gilham the Court took a purposive approach to the ERA 1996 to read in whistleblowing protection for a district judge who also did not fall within the worker definition under the ERA 1996. The Court held in this case that the exclusion of judicial office holders from the scope of whistleblower protection was incompatible with their rights under the European Convention on Human Rights. Article 10 protects the right to freedom of expression, including whistleblowing, and imposing a detriment for blowing the whistle could therefore interfere with freedom of expression. Article 14 then provides that Convention rights shall be secured without discrimination on a number of specified grounds, including discrimination due to any "other status".
The EAT held that external job applicants did not have a similar status to judicial officer holders and so it was not possible to extend whistleblowing protection where the ERA 1996 did not specifically provide for this. In any case, the job applicant did not suffer the less favourable treatment complained of in her capacity as an external job applicant; the protected disclosure did not relate to the application process and the detriment relied upon was not linked to her status.
Take note: It is clear following the decision in Sullivan that a job applicant will not be able to bring a whistleblowing claim. It's worth remembering though that any internal job applicants will potentially be able to bring a whistleblowing claim in relation to their application process given that, as existing workers of the organisation, they will be protected under the ERA 1996.
