Employees and workers are protected by law if they blow the whistle and are subsequently subject to a detriment by their employer. In Sullivan v Isle of Wight Council, however, the Employment Appeal Tribunal (EAT) held that the law could not be extended under the European Convention on Human Rights (ECHR) to cover external job applicants who blow the whistle.
Basic facts
After applying unsuccessfully for two jobs with the Council in October and December 2019, Ms Sullivan filed a police crime report in January 2020 report alleging that the interviewers had made numerous inappropriate comments about her during the interview. She also accused a member of the panel of being involved in financial irregularities in relation to his role as a trustee of a local charity - the Shanklin Chine Trust (SCT). She filed similar reports with the Council’s safeguarding hotline and the chief executive as well as the Care Quality Commission and her MP.
After an investigation, the Council told Ms Sullivan in September 2020 it could not find any evidence of wrongdoing. Unusually it declined to let her take her complaint to the next stage. Instead it said that she could complain directly to the Local Government Ombudsman but when she did, she was told that the Ombudsman did not deal with employment-related issues.
Ms Sullivan lodged tribunal complaints arguing that she had been subjected to a detriment (the refusal to allow her to appeal) because she had made protected public interest disclosures (blown the whistle) about the SCT.
Relevant law
Whilst acknowledging that she did not have the status of “worker” under section 47B(1) of the Employment Rights Act 1996, Ms Sullivan argued that it could be extended to include job applicants by reason of article 10 (freedom of expression to protect those blowing the whistle) and article 14 (prohibition of discrimination against those with “other status”) of the ECHR.
Relying on the Supreme Court decision of Gilham v Ministry of Justice, she argued that her situation was analogous to the district judge whose role as a “judicial office holder” was held to fall within the definition of “other status” under article 14.
Tribunal decision
Although the tribunal agreed that the facts as set out by Ms Sullivan fell within the ambit of article 10, it distinguished the situation of an external job applicant from that of a job holder who has an ongoing relationship with their employer involving both rights and responsibilities. She could not therefore rely on the judgment in Gilham which involved an officeholder who was integrated into and operated as part of the workforce.
Given the very wide and generic nature of a “job applicant”, the tribunal also disagreed with Ms Sullivan that it could fall under the criterion of “other status” identified in article 14. Even if it could, the council could justify the way it had treated her. Firstly she had no relationship with them and secondly, she did not fall within any of the categories which Parliament had chosen to protect. That is, employees and workers who work or have worked for the organisation in question and job applicants to the NHS where safety is of paramount importance.
EAT decision
Dismissing the appeal, the EAT held that the tribunal was right to conclude that Ms Sullivan had not been treated less favourably than others in an analogous situation and that being an external job applicant did not constitute “some other status” for the purpose of article 14.
In any event, she did not suffer the treatment that she had complained about in her capacity as an external job candidate but rather as an individual who was dissatisfied with the Council’s complaints procedure, a process which anyone could invoke.