By Neil Todd Member, Trade Union Lawyer
& Jazmeer Jackson Employment Rights Lawyer
Background
This case concerns Ms. Phyllis Sullivan’s appeal against the dismissal of her whistleblowing detriment claim, which she brought after applying unsuccessfully for roles at the Isle of Wight Council. Following two interviews in late 2019, Ms. Sullivan alleged she was verbally mistreated and uncovered financial irregularities involving the Shanklin Chine Trust, whose trustee sat on the interview panel. She raised these concerns with her MP and the council, but her complaint was rejected.
Ms. Sullivan claimed that the council's refusal to investigate further amounted to unlawful detriment under the Employment Rights Act 1996 (ERA), sections explicitlyneil 47B and 48, which protect workers from retaliation for making protected disclosures. The key issue was whether those protections extended to external job applicants.
Key Issues
1. Statutory Scope of Protection
The Employment Tribunal (ET) ruled it had no jurisdiction. Under the ERA, protection is extended to NHS job applicants (via s49B regulations) but not to applicants in other sectors. The EAT agreed, finding no legal error. Parliament had deliberately limited protection to those applying for NHS roles because of patient safety concerns.
2. Human Rights Compatibility – Article 14 (non-discrimination) and Article 10 (freedom of expression)
Ms. Sullivan argued this difference in protection breached her Convention rights, claiming she was treated less favourably as an external applicant. The EAT rejected this, finding:
- Job applicants outside the NHS were not in a materially analogous position to NHS applicants or current workers.
- Even if they were, the difference in treatment pursued a legitimate aim and was objectively justified. The Court of Appeal upheld this view, stating that Parliament had struck a fair balance between the interests of workers, employers, and the public interest.
3. Status under Article 14
The court also rejected the claim that being an external applicant amounted to a relevant “status” under Article 14. It concluded this characteristic was too closely tied to the act of applying for a job, rather than being a personal trait like race or gender.
4. Relevance of the Disclosure
Additionally, the court found that the alleged protected disclosure related to financial misconduct by a charity, not conduct that occurred during the interview or in the recruitment process. Therefore, the tribunal was right to treat the complaint as outside the scope of employment law protections.
Employment Appeal Tribunal (EAT) and Court of Appeal Decision
The EAT dismissed Ms. Sullivan’s appeal in full. The Court of Appeal agreed, confirming that the relevant provisions of the ERA do not apply to non-NHS job applicants and that this difference is justified. It also emphasised that courts should respect Parliament’s decisions on the scope of statutory rights, especially where those rights balance complex public and private interests.
Significance
This case confirms that whistleblowing protections under the ERA do not extend to external job applicants, except in specific NHS contexts. For trade union representatives, it reinforces the need for broader legal reform if job applicants in other sectors are to be protected when raising public interest concerns.
It also serves as a reminder that human rights arguments will not automatically override legislative intent, especially where Parliament has drawn distinctions based on policy needs, such as patient safety in the NHS.
Outcome
The appeal was dismissed. The current legal framework remains unchanged: only NHS job applicants are covered by whistleblowing protection. External applicants in other sectors remain outside the scope of ERA protections, even where disclosures relate to serious concerns.
