Court rules that whistleblower protections don’t extend to external applicants for jobs

The Court of Appeal has ruled that whistleblowing protections are not extended to external job candidates.

In the case of Sullivan v Isle of Wight Council Miss Sullivan applied for a position at the council, and was invited to two interviews.

She claimed that the managers had verbally harassed her and that a council employee was involved in the management of a trust that had financial irregularities.

In 2022, an employment tribunal dismissed her claim. It ruled that she did not qualify for whistleblowing protections because she was neither an employee nor a worker.

Sullivan filed an appeal with the Employment Appeal Tribunal (EATC) in January 2024. This too was rejected.

The whistleblowing charity Protect has filed a third party intervention in her case at the Court of Appeal.

The intervention was to determine whether external job candidates are protected under whistleblowing laws if they made a protected disclosure, usually about an employer, during the application process.

The Court of Appeal has now rejected Sullivan’s claim. The Court of Appeal ruled that Sullivan was not in a “materially analogous” position to NHS workers (who are protected against whistleblowing harm).

The court ruled that, although external non-NHS applicants may fall under the protection of Article 14 (protection against discrimination) of the European Convention on Human Rights, in Sullivan’s situation no ECHR rights were violated.

Protect had argued that Article 14 is incompatible with Employment Rights Act 1996, because external candidates who are not NHS employees could suffer if they disclose protected information during the hiring process. The Court of Appeal disagreed.

Protect’s chief executive Elizabeth Gardiner called the verdict “disappointing”.

She said that “job applicants who raised concerns before in their previous role have no recourse if the new employer rejects their application because of this.”

Whistleblowing is still associated with high personal costs. We know many whistleblowers that have changed their careers. We still operate a two-tiered system, with one set of rules for NHS job candidates and another for everyone else.

The Employment Rights Bill gives Parliament the chance to extend whistleblowing rights to job applicants.

A number of politicians are seeking to amend the Employment Rights Bill to extend whistleblower protections to a wider range of workers.

Personnel Today offers HR consultancy services.

Browse HR roles at recruitment consultants