Can Job Applicants Whistleblow?

Under the Employment Rights Act 1996 (ERA 1996) workers are protected from being subjected to any detriment because of a “protected disclosure”. Claims relating to protected disclosures are commonly referred to as whistleblowing claims.

Such protection will only be available where the detriment relates to a “protected disclosure”. For a disclosure to be protected, the worker in question must have disclosed information relating to one of the six types of failure, wrongdoing or malpractice:

• criminal offences;
• breach of a legal obligation;
• miscarriages of justice;
• danger to health and safety;
• damage to the environment; and/or
• the deliberate concealing of information about any of the above.

The worker must reasonably believe that the information they have disclosed shows one of these failures and that the disclosure is in the public interest. The disclosure must also be made to an appropriate person – ordinarily, the worker’s employer.

In the 2019 case of Gilham v Ministry of Justice, the Supreme Court found that a judicial office holder was entitled to protection as a whistleblower, in spite of the fact that judicial office holders are not considered to be “workers” for the purposes of the ERA 1996. The Supreme Court reached this decision on the grounds that denying judicial office holders such protection would amount to a breach of their rights under Article 14 of the European Convention on Human Rights.

In the more recent case of Sullivan v Isle of Wight Council, Miss Sullivan interviewed for two jobs with Isle of Wight Council but was unsuccessful. She proceeded to complain to the council, making a number of allegations about the interviewers, including regarding alleged financial irregularities. Having followed its own complaints procedure, the council dismissed the complaints and disapplied Miss Sullivan’s right of appeal, on the basis that their investigation had been extensive and that it wished to protect staff wellbeing. Miss Sullivan brought a whistleblowing claim on the grounds that she had made a protected disclosure and that the refusal to hear her appeal amounted to the council subjecting her to a detriment.

As Miss Sullivan was a job applicant only, she was not a worker for the purposes of the ERA 1996. Miss Sullivan argued that, as in the Gilham case, the whistleblowing protection should be extended to job applicants in order to protect their Convention rights. She also sought to compare herself to NHS job applicants, who are protected under section 49B of the ERA 1996, and internal job applicants. These arguments failed at a preliminary hearing, and Miss Sullivan appealed to the Employment Appeal Tribunal (EAT).

The EAT held that an external applicant is not in a position analogous to an internal job applicant, who derives the rights from their existing worker status. They also distinguished her circumstances from those of an NHS applicant, who are included within the scope of the ERA 1996 for the express purpose of protecting applicants who raise concerns about patient safety. Miss Sullivan’s status as a job applicant was in no way analogous to that of a judicial office holder, nor was it the reason for the alleged detriment. Ultimately, the EAT dismissed Miss Sullivan’s appeal, concluding that the clear intention of Parliament in drafting the legislation was to exclude job applicants from whistleblower protection.

While Gilham may have led employers to worry that Article 14 would open the whistleblowing floodgates, widening the ambit of protection to all manners of person, Sullivan provides some much-needed clarification on this point. For the time being, employers needn’t worry about whistleblowing claims from job applicants, although care should still be taken regarding discrimination, as highlighted here and here.

If you would like help ensuring that your recruitment processes are non-discriminatory, or would like advice on whistleblowing, please get in touch at [email protected]