Miss P Sullivan v Isle of Wight Council
Miss P Sullivan v Isle of Wight Council [2024] EAT 3
Facts
Miss P Sullivan (the Claimant/Appellant) was an external job applicant for two finance positions with the Isle of Wight Council (the Respondent) in late 2019, but she was unsuccessful in both interviews. In January 2020, she filed reports with the Hampshire Police and the Respondent’s safeguarding helpline, alleging that during her interviews, she was repeatedly stated to be "mentally insane" and also raising concerns about alleged financial irregularities concerning the Shanklin Chine Trust, involving one of the Respondent's managers, Mr Porter.
The Claimant relied on a letter sent to her MP, Mr Justin Tomlinson, on 17 March 2020, as her protected public interest disclosure. This letter also addressed the alleged "mentally insane" comments and the financial irregularities of the Shanklin Chine Trust. The only detriment she relied upon was the Respondent's refusal on 18 September 2020 to allow her a right of appeal against the rejection of her complaint regarding the conduct of the interviews. The Respondent's complaints policy usually allowed for a Stage 2 review, but it was "disapplied" in her case.
Held
The Exeter Employment Tribunal initially found it lacked jurisdiction to consider Ms. Sullivan's whistleblowing complaints under the Employment Rights Act 1996 (ERA). On appeal, the Employment Appeal Tribunal (EAT) upheld this decision, considering the four questions from the Supreme Court case of Gilham v Ministry of Justice:
(i) Do the facts fall within the ambit of one of the Convention rights? The Tribunal, taking the Claimant's case at its highest, found that the facts potentially fell within Article 10 (freedom of expression) and Article 14 (prohibition of discrimination) of the European Convention on Human Rights (ECHR). This finding was not challenged on appeal.
(ii) Has the claimant been treated less favourably than others in an analogous situation? The Tribunal found that the Claimant, as an external job applicant, was not in an analogous situation to employees/workers or job applicants applying to NHS employers. The EAT agreed, stating that an external job applicant's lack of an existing working relationship with the putative employer meant their situation was not analogous to that of an internal applicant. Furthermore, the EAT noted that the Claimant's specific disclosure concerned matters unconnected to her application process, which had ended months prior.
(iii) Is the reason for that less favourable treatment one of the listed grounds or "some other status"? The Tribunal concluded that "job applicant," as a "very wide and generic grouping," did not constitute "some other status" for the purposes of Article 14 ECHR. The EAT concurred, differentiating it from the "occupational classification" of a judicial officeholder found in Gilham, arguing that "job applicant" describes an act rather than a personal characteristic or acquired status.
(iv) Is that difference without reasonable justification (proportionate)? The Tribunal found there was reasonable justification for the difference in treatment between generic job applicants (who have no relationship with the organisation) and protected categories like employees/workers or NHS applicants. While the EAT agreed that the Tribunal had erred in its approach to proportionality by not applying a structured test, it deemed this error to be of no material effect, given the answers to the second and third Gilham questions. The EAT also stated it was appropriate to defer to Parliament's considered opinion regarding the limited extension of whistleblowing protection to NHS applicants, implying a deliberate choice not to extend it to general job applicants.
Consequently, the EAT dismissed Miss Sullivan's appeal.
Comment
This case highlights the limitations of whistleblowing protection under the Employment Rights Act 1996 (ERA) for external job applicants. The Employment Appeal Tribunal (EAT) affirmed that such individuals typically do not possess the necessary "worker" status to bring claims for detriment based on protected disclosures.
A key takeaway is the EAT's interpretation of "analogous situation" and "other status" within the Gilham test. The EAT clearly distinguished between external job applicants and internal employees/workers due to the absence of an existing workplace relationship for the former. It also differentiated general job applicants from those covered by the NHS Regulations, noting that the latter were introduced for specific reasons related to patient safety and staff movement within the NHS, based on an evidence-based approach by Parliament.
Furthermore, the EAT's decision confirms that being a "job applicant" is not considered "some other status" under Article 14 ECHR in the same vein as an occupational classification like a judicial officeholder. The court reasoned that it refers to an "act" (applying for a job) rather than a personal characteristic or acquired status.
Finally, the EAT indicated that extending whistleblowing protection to all job applicants would not "go with the grain" of the existing ERA legislation. Such a broad amendment, the EAT suggested, would represent a significant policy change requiring legislative deliberation by Parliament, rather than judicial interpretation. The specific provisions like the NHS Regulations (Section 49B) are seen as limited exceptions to a general rule.
