In Sullivan v Isle of Wight Council, the Court of Appeal has held that external job applicants, other than applicants to roles within the NHS, do not enjoy whistleblowing protections under the Employment Rights Act 1996.
The appellant was an external applicant for a job with the respondent local authority. She alleged that she had blown the whistle about the prospective employer and had been subjected to detriment as a result. However, the Employment Rights Act on its ordinary domestic interpretation only provides whistleblowing protections to employees; it does not apply to external job applicants (save for applicants to NHS roles).
The appellant argued that this ordinary domestic interpretation breached her rights under Article 14 ECHR when read with Article 10 in that it treated external non-NHS job applicants less favourably than either (a) internal job applicants or (b) external applicants to NHS roles.
The appellant succeeded in arguing that her status as an external non-NHS job applicant was protected. However, the Court considered that she was not in a materially analogous position to her comparators and that in any event the difference in treatment was justified.
The appellant was represented by James Robottom, led by Jeffrey Jupp KC, both instructed pro bono through Advocate.
The whistleblowing charity Protect intervened in the appeal. Protect was represented by Claire Darwin KC and Nathan Roberts.