The Employment Rights Act 1996 (ERA 1996) provides protection for employees and workers from dismissal and detriment for making protected disclosures, commonly referred to as whistleblowing. However, the definition of "worker" under the ERA 1996 does not typically extend to external job applicants. This was clarified in the case of Sullivan v Isle of Wight Council, where the Employment Appeal Tribunal (EAT) upheld that external job applicants are not covered by whistleblowing protections under the ERA 1996.
Facts of the case
In Sullivan v Isle of Wight Council, the claimant, Ms. Sullivan, applied for two financial roles at the Isle of Wight Council but was unsuccessful. Following her unsuccessful applications, she raised concerns about alleged financial misconduct by one of her interviewers. The Council investigated her complaints but did not offer her a right of appeal. Ms. Sullivan claimed that the refusal to allow her an appeal constituted a detriment due to her whistleblowing.
Tribunal's decision
The Employment Tribunal dismissed Ms. Sullivan's claim, stating that the definition of "worker" under the ERA 1996 does not include external job applicants. The Tribunal noted that while the definition of "worker" is extended in certain contexts (e.g., NHS job applicants), it does not generally cover external applicants. The EAT upheld this decision, emphasising that Ms. Sullivan's status as an external applicant did not entitle her to whistleblowing protections.
Legal Interpretations and Implications
Definition of "Worker"
The ERA 1996 defines a "worker" as someone who has or had a contract of employment or a contract under which they are personally required to work for the employer. This definition includes employees, agency workers, and certain self-employed individuals but explicitly excludes external job applicants. The EAT in Sullivan v Isle of Wight Council confirmed that Parliament intended to exclude job applicants from whistleblower protection, except in specific cases like NHS job applicants.
European Convention on Human Rights (ECHR) argument
Ms. Sullivan argued that her status should be protected under the ECHR, similar to the protection extended to judicial office holders in Gilham v Ministry of Justice. In this case, the Supreme Court ruled that judicial office holders are protected as whistleblowers, even though they are not classified as “workers” under the ERA 1996. The decision was based on the view that denying this protection would violate their rights under Article 14 of the European Convention on Human Rights. However, the EAT found that her situation was not analogous to that of internal applicants or NHS job applicants, and thus, the ECHR did not mandate extending whistleblowing protections to her.
Key takeaways for employers
Whistleblowing protections: External job applicants are generally not entitled to whistleblowing protections under the ERA 1996. Employers should be aware of this limitation but should still take all complaints seriously to mitigate business risks.
Discrimination protections: While external job applicants are not protected as whistleblowers, they are protected against discrimination under the Equality Act 2010 (the Act covers all areas of employment, from recruitment and employment terms to training, pay, promotion, dismissal, and post-employment). Employers must ensure their recruitment processes are non-discriminatory.
Best practices: Employers should conduct interviews with more than one person present and keep detailed notes to protect against potential claims. Implementing robust whistleblowing policies and training can help manage and mitigate risks.
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