The Court of Appeal is considering whether whistleblowing protections should be extended to external job applicants, after a charity submitted that the law is inconsistent with human rights legislation.
Currently, the scope of whistleblowing protections does not include external job applicants, except for people applying to the NHS under the Employment Rights Act 1996 (ERA 1996). Other workers, such as people doing work experience or agency workers, are also protected.
But because of the lack of legal protections, job applicants who blow the whistle in other sectors risk being blacklisted and can effectively be excluded from working in their chosen field again.
Whistleblowing charity Protect says the blacklisting of people who have made a protected disclosure is all too frequent; potential employers are put off by the knowledge that a particular candidate has reported wrongdoing at a previous employer.
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Protect has filed a third-party intervention at the Court of Appeal in the case of Sullivan v Isle of Wight Council to widen whistleblowing protections to all external job applicants.
It was given permission to intervene because the case gives rise to important issues of public policy.
Miss Sullivan was invited for two interviews at Isle of Wight Council, after which she alleged she was subjected to verbal harassment by the managers who conducted them.
She also alleged that one council employee was involved in the operation of a trust with financial irregularities.
Sullivan’s claim was dismissed in 2022 by the employment tribunal, which determined that whistleblowing provisions in the ERA 1996 did not apply to her as she was not a worker or employee. The protection in that Act did not extend to external job applicants. Her appeal was dismissed by the Employment Appeal Tribunal last year.
By making its intervention in the case at the Court of Appeal, Protect is not addressing the facts of the case or whether Sullivan should have protection from whistleblowing detriment in her particular claim.
Protect’s submissions address whether external job applicants are protected by whistleblowing legislation if they have made a protected disclosure, which is to raise a public interest concern – normally about an employer – during the job application process.
‘Effectively blacklisted’
Elizabeth Gardiner, chief executive at Protect, said: “Job applicants need whistleblower protections. Callers to our legal advice line frequently tell us that their whistleblowing not only ends their jobs but that they fear they will never work in their chosen sector again – they are effectively blacklisted.
“There is nothing to stop employers discriminating against whistleblowers when they apply for jobs, and nothing to protect an applicant who raises a concern during the appointment process. This needs to change. Job applicants are already protected in the NHS – whatever role they apply for, not just those who work with patients. The law is inconsistent and we very much hope that this case will herald change.”
Job applicants need whistleblower protections. Callers to our legal advice line frequently tell us that their whistleblowing not only ends their jobs but that they fear they will never work in their chosen sector again – they are effectively blacklisted” – Elizabeth Gardiner, CEO, Protect
Anna Birtwistle, a partner in the employment team at Farrer & Co, said: “It has been a privilege to assist Protect on a pro bono basis with this third-party intervention, which hopes to assist the Court of Appeal with a technical and complex area of law which has expanded considerably since the ERA was passed in 1996.”
Claire Darwin KC of Matrix Chambers, representing Protect today at the Court of Appeal, said: “This appeal raises complex and significant questions about the scope of whistleblowing protections under the Employment Rights Act 1996. I am pleased to have had the opportunity to assist Protect and contribute to the Court of Appeal’s consideration of these important legal issues, which have far-reaching implications for the protection of whistleblowers in the workplace.”
The legal submissions explore the relationship between the ERA 1996 and Article 14 of the European Convention on Human Rights (ECHR) when read in conjunction with Article 10 ECHR.
The appeal concerns whether the ERA 1996 is compatible with the ECHR and, if not, whether it ought to be read compatibly or whether the court should make a declaration of incompatibility.
Protect’s intervention submits that the ERA 1996 is incompatible with the ECHR because external (non-NHS) job applicants can be subject to a detriment if they make a protected disclosure during a job application process, or on the ground that they have made a previous disclosure, and that this difference in treatment is not justified.
Last year, politicians including former justice secretary Sir Robert Buckland and Baroness Margaret Hodge tabled an amendment to the Employment Rights Bill to expand the types of workers permitted to make protected disclosures.
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