In the UK, whistleblowing protections are primarily governed by the Employment Rights Act 1996 (ERA 1996), as amended by the Public Interest Disclosure Act 1998. These laws safeguard employees and workers who make protected disclosures - commonly known as whistleblowing - about wrongdoing in the workplace. However, the extent to which these protections apply to job applicants has been a topic of legal scrutiny. Recent case law has provided clarity on this issue, particularly concerning external job applicants.
Current legal framework
Under the ERA 1996, whistleblowing protections are extended to employees and workers who make a "protected disclosure." A protected disclosure involves revealing information that the discloser reasonably believes shows a breach of a legal obligation, a criminal offence, a miscarriage of justice, danger to health and safety, damage to the environment, or the deliberate concealment of any of these issues. The disclosure must be made in the public interest and to an appropriate person, typically the employer or a relevant regulatory body.
Whistleblowing protections for job applicants
The question of whether job applicants are entitled to whistleblowing protections has been addressed in several recent cases. Generally, whistleblowing protections do not extend to job applicants, as the definition of "worker" under the ERA 1996 does not include individuals who have not yet commenced contractual work with an employer. However, there are exceptions, particularly for applicants to roles within the National Health Service (NHS), where specific regulations provide whistleblowing protections due to the paramount importance of patient safety.
Case example: Sullivan v Isle of Wight Council
In the case of Sullivan v Isle of Wight Council, the Court of Appeal held that external job applicants, other than those applying for NHS roles, do not enjoy whistleblowing protections under the ERA 1996. Ms. Sullivan, an external applicant for a job with the Isle of Wight Council, alleged that she had made a protected disclosure about the prospective employer and had suffered a detriment as a result. The court found that the ERA 1996, on its ordinary domestic interpretation, only provides whistleblowing protections to employees and not to external job applicants, except for those applying to NHS roles.
Ms. Sullivan argued that this interpretation breached her rights under Article 14 of the European Convention on Human Rights (ECHR) when read with Article 10, as it treated external non-NHS job applicants less favourably than internal job applicants or external applicants to NHS roles. Although she succeeded in arguing that her status as an external non-NHS job applicant was protected, the court concluded that she was not in a materially analogous position to her comparators, and the difference in treatment was justified.
Case example: MacLennan v The British Psychological Society
In MacLennan v The British Psychological Society, the Employment Appeal Tribunal (EAT) considered whether whistleblowing protections apply to disclosures made pre-employment. Dr. MacLennan, who was elected as president-elect of the British Psychological Society (BPS), made complaints concerning the governance of the BPS, which he contended were protected disclosures. After his role was terminated, he claimed he was subjected to detriment due to his whistleblowing. The EAT clarified that while Dr. MacLennan was not a worker under the traditional definition, the tribunal should have considered whether there were analogous circumstances with employees. The case was remitted to the tribunal to reconsider the application of whistleblowing protections in this context.
Implications for employers and job applicants
The current legal framework and case law underscore the limited scope of whistleblowing protections for job applicants. Employers should be aware that while job applicants are generally not entitled to whistleblowing protections, they are protected against discrimination under the Equality Act 2010. This Act covers a wide range of discriminatory behaviours, including direct and indirect discrimination, harassment, and victimisation, across various protected characteristics such as age, disability, race, and sex.
Employers should ensure that their recruitment processes are non-discriminatory and that they take all complaints seriously to mitigate business risks. While job applicants may not be able to bring whistleblowing claims, they can still pursue discrimination claims if they believe they have been treated unfairly during the recruitment process.
Future developments and considerations
The evolving case law and ongoing discussions about whistleblowing protections suggest that there may be future changes to the legal framework. Campaigners have called for reforms to extend whistleblowing protections to a broader group of individuals, including job applicants. The creation of an independent office of the whistleblower and stronger penalties for retaliation against whistleblowers are among the proposed reforms. However, as of now, the government has not committed to any specific changes, and campaigners may need to be patient as the legal landscape continues to develop.
Conclusion
While the ERA 1996 provides robust protections for employees and workers who make protected disclosures, these protections do not generally extend to job applicants. Recent case law, such as Sullivan v Isle of Wight Council and MacLennan v The British Psychological Society, has clarified the boundaries of these protections and highlighted the exceptions for NHS job applicants. Employers should remain vigilant in ensuring non-discriminatory recruitment practices and be prepared for potential future changes in the legal framework governing whistleblowing protections. As the workplace continues to evolve, there may be increased calls for extending whistleblowing protections to cover job applicants, reflecting the growing emphasis on transparency and accountability in employment practices.
This article was created with insights from Lex HR - your always-on HR legal assistant. Lex HR helps HR professionals navigate complex employment law with confidence, providing real-time, reliable advice tailored to your needs. Try it free today and see how much easier compliance can be.
